I  o. 


THE  SOVEREIGNTY  OF  THE  STATES  OVER 
THEIR  NAVIGABLE  WATERS. 


ARGUMENT 


DANIEL  D.  BARNARD, 

IN  THE 

ALBANY  BRIDGE  CASE, 

SUBMITTED  TO  THE 


njjrtme  Court  of  tljc  iiutctr  states, 


AT  THE  TERM  HELD  IN  THE 


CITY  OF  WASHINGTON, 


IN  FEBRUARY,  1860. 


ALBANY: 

ATLAS  &  ARGUS  PRINT. 
1860. 


Digitized  by  the  Internet  Archive 
in  2019  with  funding  from 
Duke  University  Libraries 


https://archive.org/details/sovereigntyofstaOObarn 


IN  THE 


SUPREME  COURT 

OF  THE 

UNITED  STATES, 

I  !N"  EQUITY. 


ROBERT  D.  SILLIMAN, 
vs. 

THE  HUDSON  RIYER  BRIDGE  CO. 


FREDERICK  W.  COLEMAN, 
vs. 

THE  SAME. 


ARGUMENT  OP  D.  D.  BARNARD  POR  DEPENDANT. 

I. 

This  case  comes  before  the  Court  in  a  way  to  involve 
questions  of  a  good  deal  of  magnitude  and  interest ;  one  of 
which,  at  least,  and  that  the  highest  of  all  in  importance,  has 
never,  so  far  as  I  know,  received  the  deliberate  consideration 
of  this  Court. 

The  particular  question  referred  to,  has  relation  to  the 
extent  to  which  the  authority  of  Congress,  under  the 
power  “  to  regulate  commerce,”  may  be  carried  in  asserting 
a  supremacy  of  sovereignty  and  jurisdiction  in  the  Govern- 


f 


2 


meat  of  the  United  States,  both  on  the  waters  and  on  the 
land,  within  the  territorial  limits  of  the  several  States,  over 
the  sovereignty  and  jurisdiction  of  the  States.  To  that 
question  I  shall  ask  leave  to  call  the  special  attention  of 
the  Court  before  concluding  my  argument. 

This  case  arises  from  the  action  of  the  Legislature  of  the 
State  of  New  York — the  supreme  power  in  the  State — taken 
to  establish  abridge  across  the  Hudson  River  at  Albany. 
The  Act  for  this  object  was  passed  in  1856,  and  a  supple¬ 
mentary  Act  in  1857.  The  State  proceeds  by  a  mode  usual 
in  the  States  in  prosecuting  their  works  of  public  improve¬ 
ment — by  incorporating  a  Company  with  authority  to  erect 
a  bridge,  under  the  special  limitations  and  instructions  of 
the  Act  of  Incorporation. 

The  State  of  New  York,  as  everybody  knows,  beginning 
early,  has  accomplished  a  good  deal  in  the  way  of  public 
improvements.  Having  the  Bay  of  New  York,  with  the 
commercial  emporium  of  the  country  seated  upon  its  shores, 
and  having  the  Hudson  River  ascending  .from  it,  and  navi¬ 
gable  for  vessels  and  steamers  of  large  size  for  150  miles — a 
great  highway  of  commerce — she  early  adopted,  and  has 
executed,  plans  by  which  she  has  extended  this  water  high¬ 
way,  by  a  grand  system  of  artificial  rivers,  through  her  en¬ 
tire  territory,  north  and  west ;  and  has  thus  brought  her 
great  river  and  bay,  opening  to  the  sea,  and  her  great  com¬ 
mercial  city,  through  a  thoroughfare  of  navigable  waters, 
into  a  direct  commercial  connection  with  a  foreign  country 
of  vast  extent  on  her  northern  boundary,  and  a  chain  and 
system  of  States  of  the  Union,  actual  and  prospective,  in 
the  boundless  West — where  still  “  the  star  of  empire  ”  seems 
to  take  its  way. 

Already  the  connected  commerce  on  these  navigable 
waters  of  the  State,  natural  and  artificial,  is  immense. 
With  the  completion  of  the  enlargement  of  the  canals,  it 
cannot  fail  to  be  greatly  increased.  As  a  valuable  portion 
of  that  which  passes  on  the  Hudson,  in  connection  with  the 


3 


canals,  employs  the  river  above  Albany,  it  is  the  highest 
interest  of  the  State  to  take  care  that  the  navigation  of  the 
river  at  and  above  Albany,  as  well  as  below,  shall  be  pre¬ 
served. 

But  the  State  has  highways  of  commerce  on  the  land  as 
well  as  on  the  water.  Besides  its  common  roads  and  turn¬ 
pikes,  it  has  an  immense  system  of  railways,  stretching 
through  the  State  by  various  routes,  constructed  at  vast 
cost,  and  bearing  vast  amounts  of  commerce  and  travel. 
The  great  central  line  of  this  system  of  railways  connects 
New  York  with  Buffalo,  and  the  almost  limitless  West,  and 
crosses  the  river  at  Albany.  Other  lines,  one  coming  west¬ 
ward  from  Boston,  and  another  coming  southward  from 
Canada,  and  the  States  north  and  east,  also  cross  the  river 
at  Albany. 

Ferries  have  been  established  at  Albany  from  the  earliest 
time,  and  always  maintained  under  colonial  and  State  au¬ 
thority.  At  the  present  time,  besides  two  steam  ferry-boats 
for  common  use,  and  kept  in  almost  constant  motion,  there 
are  two  others  which  have  thus  far  served,  very  imperfectly 
of  course,  to  supply  the  broken  link  in  the  otherwise  con¬ 
tinuous  lines  of  railway  just  referred  to.  Nearly  4,000  pas¬ 
sengers  cross  the  river  daily  in  connection  with  these  rail¬ 
ways — a  good  deal  more  than  a  million  a  year,  and  more 
than  500,000  tons  of  freight.  Ferry-boats  afford  very  in¬ 
adequate  and  inconvenient  means  for  a  business  of  such 
magnitude. 

The  State  finally  concluded,  in  1856,  that  the  time  had 
come — the  population  of  the  State  having  run  up  to  a  sum 
greater  than  that  of  the  whole  Union  at  the  Revolution, 
and  the  movement  of  property  and  persons  on  her  high¬ 
ways  of  commerce,  being  much  greater  than  in  ordinary 
proportion  to  the  population — when  better  facilities  ought 
to  be  afforded,  and  were,  in  her  judgment,  imperatively  de¬ 
manded,  for  so  much  of  this  movement  of  property  and 
persons  as  must  traverse  the  Hudson  at  Albany. 


4 


She  determined,  therefore,  to  establish  a  bridge  at  this 
point.  She  believed  that  a  bridge  could  be  so  constructed 
that  while  it  would  afford  increased  facilities  for  the  tra¬ 
verse  of  the  river,  it  would  still  leave  the  navigation  of  the 
river  free  for  all  useful  purposes,  with  no  other  inconve¬ 
niences  than  such  partial  ones  as  must  always  arise,  to  some 
extent,  in  works  of  this  character,  and  which,  by  the  very 
necessities  of  the  law  of  general  improvement  and  progress, 
must  be  submitted  to,  in  consideration  of  the  just  accommo¬ 
dation  required  to  be  afforded  to  other  public  interests, 
quite  as  important  as  those  to  which  such  partial  inconve¬ 
niences  may  apply,  and  equally  entitled  to  the  fostering 
care  and  protection  of  the  government. 

The  State  was  the  proper  guardian  of  both  interests,  and 
of  all  interests  affected  by  the  measure,  certainly  to  the  ex¬ 
tent  to  which  the  domestic  commerce  and  travel  of  the 
State  were  concerned.  It  acted  for  both  interests;  and  for 
both  interests  in  that  ampler  view  which  embraces  so  much 
of  the  foreign  commerce  of  the  country,  and  of  the  commerce 
between  the  States,  as  moves  upon,  or  traverses  the  river 
at  this  point,  and  in  the  protection  and  preservation  of 
which  the  State  of  New  York  has  a  deeper  stake,  certainly 
than  any  other  State,  and  than  a  good  many  States  com¬ 
bined. 

It  is  not  an  unimportant  consideration  in  this  connection, 
that  the  immense  interests  involved  in  the  Postal  and  Mili¬ 
tary  systems  of  the  United  States,  coming  within  the  State 
of  New  York,  do  naturally,  and  must  of  moral  necessity, 
seek  and  employ  the  same  channels  of  communication,  and 
the  same  means  and  facilities,  artificial  as  well  as  natural, 
for  traversing  the  State,  as  the  commerce  of  the  State  em¬ 
ploys. 

I  think  it  may  be  said,  without  fear  of  gain-saying,  that 
if  the  Government  of  the  United  States  had  undertaken  to 
make  post-roads  and  military  roads  for  itself  in  the  State  of 
New  York,  and  if  it  had  gone  further,  and  undertaken  a 


5 


grand  system  of  internal  improvements  in  this  State  by 
making  roads,  canals  and  railvrays,  for  promoting  and  facili¬ 
tating  that  foreign  commerce,  and  commerce  between  the 
States,  which  it  is  its  province  to  “  regulate, ”  it  could  not 
have  devised  a  system  of  improvements  more  perfectly 
fitted  to  all  such  national  uses,  than  that  which  has  been 
prepared  by  the  State  alone,  under  its  original  and  un¬ 
doubted  power  to  make  roads,  canals,  railways  and  bridges, 
not  in  conflict  with  the  Constitution  of  the  United  States 
or  any  law  of  Congress,  for  the  benefit  of  the  domestic  in¬ 
terests  of  the  State,  and  of  the  commerce  belonging  to  or 
passing  through  it. 

The  State  has  believed  that  its  system  of  public  improve¬ 
ments  was  very  incomplete  without  the  addition  of  a  bridge 
at  Albany.  And  if  the  State  had  not  embarked  in  this  en¬ 
terprise,  and  if  the  Government  of  the  United  States  was 
competent  to  undertake  its  and  could  have  done  so  with  pro¬ 
priety  under  any  power  it  possesses,  I  think  Congress  could 
scarcely  have  done  anything,  on  the  same  scale,  of  greater 
usefulness,  or  of  more  pressing  importance,  for  the  national 
objects  under  its  charge  within  the  State  of  New  York — 
for  its  post  system  and  mails,  for  military  uses,  and  for 
whatever  might  facilitate  foreign  and  inter-State  commerce 
in  this  quarter  of  the  Union — than  itself  to  construct  just 
such  a  bridge  at  Albany  as  the  State  now  proposes  to 
establish. 

This  Court  will  not  presume,  nor  be  lightly  convinced, 
that  the  State  has  entered  on  this  enterprise  without  due 
consideration  of  all  the  interests  that  may  be  affected  by 
it.  Nor  will  it  assume,  or  be  easily  persuaded,  that  it  is 
itself  a  better  judge  than  the  State  can  be,  however  enlight¬ 
ened  by  any  testimony  which  interested  parties  may  bring 
before  it,  of  the  various  questions,  physical  and  economical, 
involved  in  it.  These  same  parties,  be  it  remembered,  and 
all  parties  opposed  to  the  measure,  as  well  as  those  in  its 
favor,  have  been  heard,  with  whatever  testimony  they  chose 


6 


to  offer,  before  appropriate  committees  of  the  Legislature, 
before  the  enterprise  was  adopted. 

Now  the  Court  has  the  authoritative  and  formal  announce¬ 
ment  in  the  Acts  of  the  Legislature  of  New  York  authorizing 
the  bridge,  and  which  I  know  it  will  take  pleasure  in  treat¬ 
ing  with  all  respect,  that  the  State  believes  that  a  necessity 
had  arisen  for  a  bridge  over  the  Hudson  at  Albany  ;  that 
the  time  had  come  when  it  was  its  duty  to  provide  for  the 
transit  over  the  river,  by  that  means,  of  the  great  and  grow¬ 
ing  press  of  commerce  and  travel  seeking  passage  at  that 
point ;  and  that  a  bridge  could  be  constructed  under  the 
directions,  limitations  and  provisions  of  the  Act  of  the 
Legislature,  which  would  not  obstruct,  or  materially  impede 
or  injure  the  accustomed  use  of  the  river  for  navigation  at 
and  above  the  bridge,  or  occasion  any  material  loss  or  dam¬ 
age  to  individual  property,  or  to  the  business  interests  of 
any  locality  or  community  whatever. 

Can  this  Court,  under  any  conceivable  circumstances,  be 
a  better  judge  of  these  grave  matters  than  the  State,  to 
which  they  would  seem  more  appropriately  to  belong?  Is 
it  a  proper  exercise  of  judicial  power  in  this  Court — is  it 
the  exercise  of  a  judicial  power  at  all — for  this  Court  to  sit 
as  a  Council  of  Revision  over  the  Acts  of  a  State  Legislature 
on  such  questions  as  these  —  questions  fit  only  for  legisla¬ 
tive  investigation  and  decision ;  when  the  only  ground  on 
which  the  Court  can  be  asked  to  entertain  them  in  the  pre¬ 
sent  stage  of  the  business  is,  that  at  the  end  of  its  investi¬ 
gations,  and  its  examination  of  5,650  legal  folios  —  more 
than  one  thousand  octavo  pages  of  closely  printed  matter — 
in  the  form  of  evidence,  almost  wholly  speculative  in  char¬ 
acter,  it  might  reach  a  conclusion  different  from  that  at 
which  the  State  had  arrived  in  regard  to  the  necessit\T,  the 
general  propriety,  and  the  safety  to  the  public  interests,  of 
a  bridge  at  Albany. 

This  case  first  came  to  a  hearing  before  his  Honor  Mr. 
Justice  Nelson,  in  the  autumn  of  1856,  upon  a  motion  for 


7 


a  Preliminary  Injunction.  On  this  motion,  in  July  1857, 
the  State  was  laid  under  a  Judicial  Interdict  in  regard  to 
the  establishing  of  a  bridge,  as  authorized  and  provided 
for  in  the  Act  of  the  Legislature,  and  has  so  remained  now 
for  two  years  and  a  half. 

And  this  Interdict  was  laid,  not  because  the  Court  had 
come  to  a  conclusion,  upon  the  proofs  then  before  it,  ad¬ 
verse  to  the  right  of  the  State  to  construct  such  a  bridge 
as  was  proposed ;  not  because  the  Court  was  of  opinion 
that  the  State  had  misjudged  in  its  estimate  of  the  effect 
to  be  produceed  by  the  bridge  upon  the  navigation  of  the 
river;  not  because  the  Court  was  of  opinion  that  the  State 
had  passed  a  law  for  this  object  which  was  in  conflict  with 
the  Constitution,  or  any  law  of  Congress  ;  not  because  the 
party  complaining  had  made  out  any  case  whatever  against 
the  sovereign  right  of  the  State  in  the  premises  ;  but  be¬ 
cause  the  Court,  at  some  future  day,  and  on  further  proofs, 
might  be  brought  to  conclude  that  the  State  had  so  far 
erred  on  the  purely  speculative  question  of  the  effect  to  be 
produced  on  the  navigation,  as  that  a  conflict  between  the 
State  law  and  some  law  of  Congress  might  arise,  or  mani¬ 
fest  itself,  if  the  bridge  should  be  established. 

The  mischiefs  of  this  early,  and,  as  it  will  be  my  duty  to 
insist  in  this  argument,  entirely  premature  interposition  of 
the  Court  in  a  case  of  this  sort,  are  apparent  in  this  very 
proceeding. 

His  honor,  Mr.  Justice  Nelson,  for  whom  I  beg  to  say  I 
entertain  the  highest  respect,  in  the  opinion  delivered  by 
him,  on  granting  the  Preliminary  Injunction,  declared  that, 
“  in  his  judgment,  the  real  and  turning  point  in  the 
case  is,  whether,  or  not,  *  *  *  the  draw  or  draws  will  furn¬ 
ish  reasonable  means  to  prevent  any  substantial  obstruc¬ 
tion  to  the  navigation.”  On  this  question,  which,  in  the 
hands  of  the  Court,  must  be  one  of  pure  speculation,  the 
Court  doubts,  and  upon  this  doubt  the  State  is  laid  under 
interdict,  and  yet,  all  the  while,  it  was  an  admitted  fact  in 


8 


the  case,  that  for  three  or  more  months  in  the  year — always 
the  most  difficult  and  dangerous  for  the  passage  across  the 
river — the  navigation  of  the  river  is  wholly  closed  by  ice, 
during  which  the  use  of  the  bridge  would  be  exceedingly 
important  to  the  great  interests  intended  to  be  secured  by  it, 
even  if  not  allowed  to  use  it  at  all  for  the  rest  of  the  year, 
and  when,  of  course,  no  possible  question  of  obstruction  by 
the  closing  of  the  draw  or  draws,  could  arise. 

I  shall  endeavor,  by  and  by,  to  satisfy  this  Court  that  in 
any  case  where  a  question  of  conflict  is  made  between  a  law 
of  a  State  passed  under  an  admitted  power,  and  a  law  of 
Congress  passed  under  another  and  a  different  power,  and 
where  no  question  of  conflict  arises  on  the  face,  or  by  the 
terms  of  the  State  law,  it  is  quite  time  enough  for  the  juris¬ 
diction  of  the  Courts  of  the  United  States  to  be  brought  to 
bear  upon  the  case,  when  some  actual  conflict  or  collision 
takes  place  by  some  act,  or  the  exercise  of  some  authority, 
under  the  State  law,  of  such  a  character  as  may  authorize 
and  lead  the  Court  to  pronounce  that  the  two  laws  cannot 
stand  together,  and  each  have  a  reasonable  and  fair  execu¬ 
tion  and  operation,  but  that  one  must  give  way.  That 
of  course  must  be  the  State  law,  since  the  Act  of  Congress 
must  have  the  supremacy  which  the  Constitution  assigns 
to  it. 

This  case  having  been  again  heard,  upon  further  proofs, 
before  the  Circuit  Court,  and  the  two  judges  sitting  at  that 
Circuit  having  divided  in  opinion,  the  case  comes  before 
this  Court  for  final  adjudication. 


II. 

The  case  before  the  Court  is  this : 

An  Act  had  been  passed  by  the  Legislature  of  New  York, 
authorising  the  erection  of  abridge  over  the  Hudson  River 
at  Albany. 


9 


Before  anything  was  done  towards  the  actual  erection  of 
the  bridge,  this  suit  was  brought. 

The  parties  complaining  are  :  first,  a  citizen  of  Troy,  and 
next,  a  citizen  of  Massachusetts. 

Both  claim  rights  to  the  free  navigation  of  the  Hudson 
Biver,  under  a  license  from  the  authorities  of  the  United 
States,  for  the  coasting  trade. 

The  suit  in  form,  is  against  a  Chartered  Company,  which 
is  authorized  to  construct  the  bridge.  In  substance  and 
effect,  it  is  against  the  State  of  New  York.  It  is  the  State 
that  has  undertaken  to  establish  a  Bridge  over  the  Hudson 
at  Albany,  for  the  public  benefit,  and  as  a  part  of  its  system 
of  public  improvements.  It  has  proposed  to  do  this 
through  the  very  usual  and  accustomed  agency  of  an  Incor¬ 
porated  Company. 

The  matter  complained  of  in  the  case,  is  a  public  law  of 
the  State,  authorising  the  erection  of  a  bridge,  when,  ac¬ 
cording  to  the  complainants,  no  such  bridge  can  be  erected 
without  violating  rights  secured  to  them  by  a  paramount 
law  of  Congress. 

It  is  thus  that  the  complainants  make  a  judicial  case  for 
themselves  before  the  Court.  They  claim  personal  rights 
under  an  Act  of  Congress — the  Act  passed  for  granting 
licenses  to  vessels  for  the  coasting  trade.  Having  pos¬ 
sessed  themselves  of  such  a  license,  for  vessels  owned  by 
them  respectively,  and  being  accustomed  to  pursue  the 
coasting  trade,  under  that  license,  on  the  Hudson  River,  as 
far  as  Troy,  where  a  port  of  delivery  is  established  by  law, 
they  claim  the  right  of  free  navigation  to  that  point,  and 
they  complain  that  the  law  of  the  State  authorising  a 
bridge  at  Albany,  will,  if  carried  into  execution,  result  in 
obstructing  that  free  navigation,  to  their  personal  injury. 

But  the  complainants  in  their  Bills,  set  forth  other 
grievances  besides  their  own,  and  they  arraign  the  State  of 
New  York  before  this  Court,  upon  grave  charges  of  error, 
and  of  faults  worse  than  error,  in  the  measure  under  con- 
2 


10 


sideration.  They  declare  that  the  enterprise  has  been 
entered  upon  without  any  public  necessity  for  it;  that  the 
public  interests  are  well  enough,  and  fully,  subserved  by 
existing  facilities,  without  this  bridge  ;  that  the  State  by 
this  measure  is  sacrificing,  or  greatly  injuring  its  own  vast 
property  and  interests  in  the  Erie  and  Champlain  Canals ; 
that  individual  property,  real  and  personal,  will  be  greatly 
and  irretrievably  impaired  by  it ;  and  that  the  great  manu¬ 
facturing  and  other  business  interests,  and  property  of  the 
city  of  Troy,  with  its  population  of  40.000,  and  of  the  neigh¬ 
boring  villages  of  West  Troy  and  Green  Islaud,  with  their 
population  of  7,000  more,  are  about  to  receive  great  and 
irremediable  injury  at  the  hands  of  the  State  by  this 
measure. 

This  rather  serious  arraignment  of  the  State  of  New 
York  before  this  Court,  first  by  a  citizen  of  Troy,  and  next 
by  a  citizen  of  Barnstable,  in  Massachusetts,  discloses 
clearly  enough  who  the  real  party  in  interest  is,  in  this 
suit.  The  city  of  Troy  does  in  this  matter  what  she  deems 
it  for  her  interest  to  do,  and  nobody  blames  her  for  it.  If 
she  is  more  frightened  than  harmed,  that  is  not  an  uncom¬ 
mon  case.  But,  at  least,  we  must  not  turn  away  our  eyes 
from  seeing  that  it  is  not  so  much  the  great  public  inter¬ 
ests  involved  in  the  free  navigation  of  the  Hudson  River 
which  are  represented  by  the  nominal  parties  to  this  suit — 
in  connection  of  course  with  the  personal  stake  they  have 
in  the  matter — as  it  is  the  alarms,  if  these  are  really  felt, 
or  the  commendable  aspirations  and  ambition  of  a  particu¬ 
lar  community  within  the  State  of  New  York,  numbering 
40,000  out  of  the  3,500,000  of  population,  which  the  State 
has  under  its  care  and  protection — a  community  which 
happens  to  have  fixed  the  site  of  its  beautiful  domain  a 
little  too  high  up  the  river  to  catch  all  the  advantages  of 
commercial  prosperity,  and  a  little  above  the  point  where 
the  State  has  thought  that  the  public  interests  at  large  de¬ 
manded  that  a  bridge  should  be  established. 


11 


Now  I  must  take  leave  to  say  that  the  economical  policy 
of  the  State  in  prosecuting  this  work  of  public  improve¬ 
ment,  and  the  effect  that  may  be  produced  incidentally 
upon  individual  property,  real  or  personal,  or  upon  the 
general  business  interests  of  any  particular  city  or  commu¬ 
nity  in  the  State,  are  not  subjects  fit  to  be  presented  to  the 
consideration  of  the  Court  in  this  case,  either  with  a  view 
to  invoke  its  condemnation  of  the  policy  of  the  State  in  this 
regard,  or  with  a  view  to  any  influence  such  considerations 
might  have  upon  the  mind  of  the  Court  in  deciding  the 
proper  and  only  judicial  case  before  it. 

No  person  could  maintain  an  action  in  a  Court  of  the 
State  solely  on  the  ground  that  the  value  of  his  property 
was  deteriorated,  or  his  general  business  interests  injured, 
by  any  bridge,  of  any  sort  or  description,  which  the  State 
might  authorize  over  the  Hudson  at  Albany,  so  long  as  its 
authority  over  the  subject  as  a  sovereign  power  was  not 
brought  into  question.  Such  general  and  incidental  inju¬ 
ries  to  individual  property,  or  to  the  business  affairs  of  a 
particular  locality,  from  the  action  of  the  State,  in  a  work 
of  public  improvement,  cannot  have  redress  at  the  hands 
of  the  judiciary  of  the  State.  The  redress,  if  any  is  to  be 
had,  or  ought  to  be  had,  can  come  only  from  the  legislative 
authority,  upon  the  petition  of  the  parties  aggrieved. 
i_  If  this  bridge  had  been  erected,  and  an  action  at  law  was 
brought  on  the  ground  of  a  claim  of  personal  right  to  the 
free  navigation  of  the  river  under  a  paramount  law  of  Con¬ 
gress,  the  State  Court  might  maintain  that  right.  The 
action  being  at  law,  the  recovery  would  be  of  damages  in 
the  particular  interest  secured  to  the  plaintiff  under  the  law 
of  Congress,  and  nothing  more.  The  action  would  be  con¬ 
fined  to  the  injury  accruing  from  the  interruption  of  his 
personal  right  to  navigate  the  river.  Injuries  to  property 
and  interests  which  are  in  no  way  under  the  special  protec¬ 
tion  of  the  general  government,  but  remain  under  the  guar- 


12 


diansliip  of  State  laws,  could  not  be  made  the  ground  of  an 
action. 

No  suit  in  Equity  for  an  Injunction  to  prevent  the  erec¬ 
tion  of  a  bridge,  could  be  maintained  in  a  State  Court  at  all. 
No  State  Court  would  sit  to  hear  an  application,  for  an  In¬ 
junction  by  a  private  party,  against  the  State,  or  against  its 
agents  created  to  carry  into  effect  a  measure  of  public  im¬ 
provement,  on  the  allegation  that  the  act  of  the  Legislature 
was  in  conflict  with  a  paramount  law  of  Congress,  unless  the 
alleged  conflict  was  apparent  on  the  face  of  the  Act,  or  was 
clearly  inevitable  if  the  proposed  measure  should  be  carried 
into  effect.  It  would  refuse  to  lay  its  hand  upon  the  State, 
or  its  constituted  agents,  in  the  way  of  judicial  interdict,  as 
an  unauthorized,  and  unseemly  exercise  of  judicial  authority. 
It  could  exercise  such  an  authority  on  no  other  ground  than 
that  the  State  was  about  to  commit  a  public  nuisance, 
against  tbe  United  States,  by  placing,  or  authorizing,  an 
encroachment  or  obstruction  to  navigation,  upon  its  own 
soil  and  property  in  the  Hudson  River,  while,  as  yet, 
nothing  appeared  to  impeach  the  perfect  authority  and 
validity  of  the  law  of  the  Legislature,  but  an  allegation  that 
a  conflict  between  that  law  and  some  act  of  Congress,  not 
apparent  or  inevitable,  from  the  face  and  terms  of  the  law, 
might  arise  hereafter,  if  the  measure  of  the  State  should  be 
prosecuted  to  completion. 

This  Court,  I  suppose,  can  exercise  no  other  or  larger 
jurisdiction  in  this  case  than  a  State  Court  could  or  would 
exercise  if  the  same  suit  had  been  brought  originally  there, 
and  the  Court  can  have  no  rule  of  decision,  in  the  absence, 
or  beyond  the  scope,  of  Congressional  legislation,  but  the 
law  of  the  State. 

This  suit  in  Equity  for  an  Injunction  to  prevent  the  pro¬ 
posed  bridge  being  erected,  can  only  be  maintained  on  the 
ground  that  it  would  be  a  public  nuisance  against  the  United 
States.  If  it  would  not  be  that,  the  complainants  certainly 
cannot  maintain  their  suit  for  the  private  injury  they  set  up 


13 


as  likely  to  arise  from  an  interruption  or  impediment  to 
their  personal  right  to  the  free  navigation  of  the  river.  The 
nuisance,  if  any,  is  to  arise  from  an  unlawful  obstruction  to 
the  navigation  of  a  public  river.  It  will  consist  in  this,  and 
nothing  else.  It  will  be  because  the  public  of  the  United 
States,  or  at  least  such  portion  of  the  public  as  may,  like 
the  complainants,  be  armed  with  a  supposed  special  authori¬ 
ty  from  the  general  government  to  navigate  the  river,  will 
be  interrupted,  or  unlawfully  impeded,  in  the  use  and  enjoy¬ 
ment  of  this  common  right.  It  will  not  be  a  public  nuisance 
against  the  United  States,  of  which  this  Court  can  take 
notice,  because  the  property  or  business  interests  of  indi¬ 
vidual  citizens  of  the  State,  or  of  any  number  of  them,  or  of 
any  particular  community  in  the  State,  may  be,  or  will  be, 
injuriously  affected  as  incident  to  the  unlawful  obstruction 
of  the  navigation  of  the  river. 

If  then  this  Court,  consenting  to  entertain  this  case  on  a 
Bill  in  Equity,  (which  I  shall  insist  it  ought  not  to  do) 

.  should  be  of  opinion  that  the  proposed  bridge,  if  erected, 
would  be  an  unlawful  obstruction  to  the  free  navigation  of 
the  river,  as  secured  or  guaranteed  to  the  public,  or  a  por¬ 
tion  of  the  public,  by  the  legislation  of  Congress,  and 
therefore  a  public  nuisance  and  offence  against  the  United 
States,  the  Court,  of  course,  if  it  thinks  it  has  the  power, 
will  so  decide.  But  the  Court  cannot  be  legitimately  aided 
in  reaching  that  conclusion  by  receiving  suggestions,  or 
proofs,  to  convince  it,  that  the  public  policy  of  the  State 
in  this  measure,  as  a  State  policy,  was  wrong,  and  that  in¬ 
stead  of  benefitting,  it  would  inflict  injury  on  its  own 
interests  and  its  own  people,  unless  its  hand  was  stayed  by 
the  authority  of  this  Court.  Much  less  can  the  Court  go 
beyond  the  jurisdiction  which  the  legislation  of  Congress 
may  be  found  to  give  it,  in  regard  to  the  alleged  public 
nuisance,  to  find  a  substantive  ground  of  judicial  action  in 
any  injuries  charged,  or  likely  to  arise  to  the  complainants, 
or  to  other  citizens  of  the  State  of  New  York,  in  their 


14 


property  or  interests,  as  incident  to  the  erection  of  the 
proposed  bridge,  and  not  arising  from  any  direct  violation 
of  their  rights  of  free  navigation. 

Quite  the  contrary  of  all  this.  The  courtesy  due  to  a 
State  requires  the  Court,  (so  I  presume  it  will  think,)  to  as¬ 
sume  that  the  State  has  acted  wisely  in  this  measure  in  re¬ 
spect  to  the  proper  interests  of  the  State,  and  of  its  own 
people ;  that  there  is,  as  the  Act  of  the  State  indicates,  a 
strong  necessity  for  a  bridge  at  Albany — a  necessity  for 
which  the  State  was  bound  to  provide,  if  it  could,  in  the 
way  proposed  ;  that  the  bridge  would  be  of  great  and 
general  benefit  to  the  people  of  the  State,  and  all  others 
having  occasion  to  use  it ;  and  that  if  incidental  loss  or 
damage  should  accrue  from  the  measure  to  any,  few  or  many, 
in  respect  to  their  private  property  or  their  general  busi¬ 
ness  affairs,  the  justice  of  the  State  may  be  relied  on,  with 
sure  confidence,  to  redress  their  grievances. 

The  principle  for  which  I  contend  here  was  fully  recog¬ 
nized,  I  think,  by  this  Court  in  the  opinion  delivered  by  Chief 
Justice  Marshall,  in  the  case  of  the  Blackbird  Creek  Marsh 
Co.  (Wilson  vs.  Blackbird  Creek  Marsh  Co.,  2  Peters  R. 
245  ;  and  8  Curtis  R.  105.)  In  that  case,  a  dam  had  been 
thrown  across  a  navigable  creek  by  the  authority  of  the 
State  of  Delaware,  which  of  course  cut  off  the  rights  of 
navigation,  and  any  other  rights  and  privileges,  of  all  who 
had  been  accustomed  to  use  the  creek.  “  But  this  abridge¬ 
ment,”  said  the  Chief  Justice,  “  unless  it  comes  in  conflict 
with  the  Constitution,  or  a  law  of  the  United  States,  is  an 
affair  between  the  government  of  Delaware  and  its  citizens, 
of  which  this  Court  can  take  no  cognizance.”  In  other 
words,  a  party  claiming  a  right  to  navigate  this  Creek 
under  the  Constitution,  or  a  law  of  Congress,  may  be  heard 
in  this  Court  to  complain  of  the  injury.  And  if  the  party 
establish  this  right  of  navigation  so  as  to  entitle  himself 
to  the  protection  of  this  Court,  he  may  have  his  redress,  but 
his  redress  must  be  confined  to  this  injury.  He  cannot  go 


15 


beyond  this  ground  of  claim,  and  ask  this  Court  to  enter¬ 
tain  his  complaints  of  other  alleged  greivances,  or  injuries 
to  other  property  or  business  affairs,  of  his  own  or  of  other 
persons,  not  under  the  special  protection  of  the  general 
government,  which  may  be  unfavorably  affected  by  the  act 
of  the  State. 


m. 

If  this  case,  instead  of  being  looked  at,  as  it  must  finally 
be,  as  necessarily  involving  the  question  of  public  nuisance, 
should  be  regarded  as  involving  no  judicial  question,  but 
that  of  the  private  and  personal  right  of  the  complainants 
to  the  free  navigation  of  the  Hudson  River,  the  Court  I 
think,  would  see  how  impossible  it  is  that  this  suit  in 
Equity  can  be  maintained.  In  this  view,  the  case  must  turn 
strictly  on  the  question  of  repugnance  to  the  Constitution, 
or  of  a  conflict  of  laws,  as  between  the  parties  to  the  record, 
one  party  claiming  rights  under  the  Constitution  of  the 
United  States,  or  a  law  of  Congress,  and  the  other  claim¬ 
ing  conflicting  rights  under  a  State  law.  Viewing  the  case 
in  this  light,  and  so  it  seems  to  have  been  viewed  by  the 
learned  Judge,  who  first  heard  the  cause —the  suit  must,  I 
think,  be  regarded  as  prematurely  brought.  Viewed  in  this 
light,  this  is  a  Bill  in  Equity,  not  resting  on  a  charge  of 
public  nuisance,  which  threatens  to  work  a  private  and 
irreparableinjury  to  the  complainants’  property, or  interests, 
but  resting  on  a  claim  of  personal  right  in  which  the  com¬ 
plainants  seek  to  be  quieted  by  an  injunction.  I  suppose 
it  cannot  be  doubted  that  this  is  a  branch  of  Chancery 
jurisdiction  never  exercised  except  where  the  right  at 
law  is  first  clearly  established.  The  right  is  never  tried  on 


16 


a  Bill  in  Equity ;  the  right  must  be  settled  and  undisputed, 
before  a  Bill  to  quiet  the  right  can  be  entertained. 

But  in  the  view  of  the  case  now  taken,  the  suit  is  pre¬ 
maturely  brought,  not  only  because  the  right  at  law  is  not 
settled  and  undisputed,  and  therefore  cannot  be  quieted  by 
injunction,  but  also  because,  if  the  Court  was  disposed  to 
try  the  right  on  this  Bill  in  Equity,  the  question  of  a  con¬ 
flict  of  laws,  on  which  the  right  claimed  by  the  complain¬ 
ants  must  turn  whenever  the  right  is  tried,  has  not  arisen, 
or  is  not  presented  in  a  way  to  enable  the  Court  to  take 
notice  of  it. 

The  Act  of  the  Legislature-  authorising  the  bridge,  "re¬ 
mains  without  execution,  and  therefore  no  actual  conflict 
has  arisen  or  manifested  itself,  or  could  do  so,  between  this 
Legislative  Act,  and  the  Act  of  Congress  relied  on  by  the 
complainants  as  their  warrant  of  title  to  the  free  naviga- 
gation  of  the  Hudson  River. 

There  can  be  no  question  here  of  repugnance  in  the 
Legislative  Act,  arising  on  its  face,  and  in  its  terms,  and 
manifest  intent,  to  any  special  provision  in  the  Constitution 
of  the  United  States.  We  know  there  are  cases  in  which 
such  repugnance  would  appear  on  the  face  of  a  State  law  ; 
as  if  a  State  should,  without  the  consent  of  Congress,  lay 
duties  on  imports,  or  a  duty  of  tonnage,  in  manifest  viola¬ 
tion  of  express  prohibitions  in  the  Constitution.  So  a 
State  might  pass  an  Act,  which  should  be,  on  the  face  of  it, 
so  manifestly  designed  to  be  a  regulation  of  commerce 
in  some  particular,  wherein  Congress  had  already  fully 
legislated,  under  its  power  “to  regulate  commerce”  (under¬ 
stood  now  on  all  hands  to  be  an  exclusive  power)  that 
such  Legislative  Act  would  be  repugnant  to  the  Constitu¬ 
tion,  because  in  conflict  with  the  Act  of  Congress,  by  its 
very  terms.  Such  precisely  was  the  conflict  of  Congres¬ 
sional  and  State  Legislation  in  the  great  case  of  Gibbons  vs 
Ogden,  [9  Wheaton,  R.,  240.]  The  Act  of  Congress  gave 
authority  to  all  vessels  of  a  certain  character,  and  having 


a  license  under  that  Act,  to  pass  freely,  over  all  the  open, 
navigable  waters  of  the  United  States,  including  those  of 
the  Bay  of  New  York,  and  the  Hudson  River.  The  Act  of 
the  State  purported  to  give  authority  to  a  certain  class  of 
these  same  vessels,  to  navigate  the  open  waters  of  New 
York,  on  having  a  license  under  that  Act,  and  forbade  all 
vessels  of  that  particular  class  to  enter  upon,  or  use  those 
waters,  without  such  State  authority,  under  heavy  penal¬ 
ties.  Nothing  could  be  more  palpable  than  the  conflict  of 
laws  in  this  instance,  on  the  face  of  the  Acts  themselves. 

In  all  such  instances  as  those  now  referred  to,  in  a  proper 
judicial  case,  the  Court  would  have  no  difficulty  in  discover¬ 
ing  and  pronouncing  on  the  repugnancy  of  the  State  law  to 
the  Constitution,  or  its  conflict  with  a  law  of  Congress,  from 
the  character  of  the  State  law.  No  judicial  case  at  law , 
however,  could  arise  even  here,  without  some  act  done 
under  the  State  law  to  make  the  occasion  or  the  foundation 
of  a  suit.  And  if  a  Bill  to  quiet  a  right  as  against  such  a 
legislative  Act  could  be  maintained  at  all,  it  would  be  on  the 
ground  that  the  right  was  clear  and  undisputed  by  reason 
of  the  character  of  the  legislative  enactment. 

There  is,  however,  a  manifest  distinction  between  such 
cases  as  I  have  just  referred  to,  and  one  where  the  State 
legislation  complained  of  has  been  enacted  under  an  original, 
undoubted,  sovereign  power  remaining  in  the  State,  subject 
though  the  power  may  be,  to  be  restricted  and  limited  by 
Congressional  legislation  under  another  and  a  different 
power,  and  where  the  Act  of  State  legislation  is  not,  on  the 
face  of  it,  in  its  terms,  or  in  its  plain  intent  and  meaning, 
or  by  neccessity  if  carried  into  execution,  repugnant  to  any 
provision  of  the  Constitution,  or  in  conflict  with  any  law  of 
Congress. 

In  such  a  case  it  is  clear  that  no  action  at  law  could  be 
brought  by  any  party  in  a  Court  of  the  United  States,  so 
long  as  no  act  or  proceeding  in  execution  of  the  State  law, 
or  under  color  of  its  authority,  has  taken  place  to  interfere 
3 


18 


with,  or  in  any  manner  disturb,  the  perfect  enjoyment  of  all 
rights  claimed  and  exercised  under  the  authority  of  any  Act 
of  Congress  No  foundation  could  be  laid  for  an  action  at 
law.  No  party  could,  in  an  action  at  law,  arraign  a  naked 
Act  of  State  legislation  before  this  Court,  and  ask  for  its 
condemnation.  He  must  come  here  complaining  of  some 
wrong,  or  some  loss  or  damage,  for  which  he  holds  his  ad¬ 
versary  responsible. 

Take  the  case  before  the  Court.  It  is  clear  that  these 
complainants  cannot  maintain  au  action  at  law  in  this  Court 
against  the  Albany  Bridge  Company.  They  claim  the  right 
of  freely  navigating  the  Hudson  River  at  and  above  Albany, 
under  the  authority  of  an  act  of  Congress,  and  a  license  to 
that  effect.  But  so  long  as  nobody  disturbs  them  in  that 
right,  they  have  no  injury  or  damage  to  complain  of. 

No  judicial  case,  then,  could  be  made  to  give  the  courts  of 
the  United  States  jurisdiction  at  law,  where  the  question  is 
one  of  repugnance  or  conflict,  so  long  as  no  act  or  proceed¬ 
ing  has  taken  place  under  the  State  legislation  resulting  in 
an  actual  collision  of  rights  and  interests.  And  therefore  it 
is  evident  that  if  the  Court  can  entertain  a  case  on  a  Bill  in 
Equity,  where  the  question  is  one  of  repugnance  or  conflict, 
before  any  collision  of  rights  or  interests  has  taken  place? 
then  its  jurisdiction  in  Equity  stands  wholly  separated,  and 
apart,  from  its  jurisdiction  at  law,  to  tins  extent ;  its  juris¬ 
diction  in  Equity  precedes  its  jurisdiction  at  law  in  the  same 
identical  case,  and  is  exercised  when  no  jurisdiction  at  law 
in  the  same  case  can  be  exercised. 

The  doubt  here  raised  is  not  to  be  determined  by  what 
may  take  place  in  the  State  Courts  under  apparently  anala- 
gous  circumstances.  The  State  Courts  have  general  juris¬ 
diction;  the  Courts  of  the  United  States  have  such  special 
jurisdiction  as  is  given  them  by  the  Constitution,  and  the 
legislation  of  Congress.  The  equity  powers  of  a  State 
Court  area  part  of  its  general  jurisdiction;  the  equity 
powers  of  the  Courts  of  the  United  States  are  a  part  of  its 


19- 


special  jurisdiction.  In  a  State,  where  a  party  cannot 
bring  a  suit  at  law  because  he-has  not  yet  suffered  an  ac¬ 
tual  wrong  or  injury,  but  is  only  threatened  with  mischief, 
and  therefore  brings  his  suit  in  Equity,  it  is  entertained,  if 
at  all,  merely  on  some  rule  of  Chancery  practice.  The 
general  jurisdiction  of  the  Court  covers  the  whole  case,  and 
if  the  party  cannot  be  heard  on  the  law  side,  he  may  on 
the  Equity  side  of  the  Court.  But  a  Court  of  the  United 
States  stands  in  a  very  different  relation  to  the  same  sub¬ 
ject.  It  has  a  special  jurisdiction  in  cases  in  law  and  equi¬ 
ty,  arising  under  the  Constitution  and  laws  of  Congress. 
A  case  must  arise,  before  jurisdiction  attaches ;  and,  on  a 
question  of  repugnance  or  conflict,  no  case  can  arise  until 
an  actual  collision  of  rights  or  interests  has  taken  place ; 
and  until  a  case  thus  arises,  the  Court  has  no  jurisdiction  in 
law  or  equity.  It  is  not  two  jurisdictions  over  the  same 
question  which  is  given  to  the  Court,  but  one  jurisdiction, 
to  be  exercised  when  a  case  arises,  and  the  jurisdiction 
attaches,  on  the  law  side,  or  the  equity  side,  of  the  Court 
according  to  circumstances. 

The  position  which  I  maintain  is,  that  no  question  of 
repugnance  or  conflict,  not  apparent  on  the  face  of  a  State 
law,  can  properly  come  before  a  Court  of  the  United 
States  in  a  suit  originally  brought  there,  until  the  repug¬ 
nance  or  conflict  has  shown  itself  in  an  actual  collision  of 
rights  or  interests.  It  is  doubtful,  perhaps,  whether  the 
mere  passing  of  an  act  by  a  State  legislature  which  the 
Constitution  expressly  forbids  it  to  pass,  or  the  mere  pass¬ 
ing  of  an  act  on  a  subject — the  regulation  of  commerce  for 
example — on  which  Congress  has  already  legislated,  under 
a  power  conceded  to  be  exclusive,  is  sufficient  to  authorize 
a  Court  of  the  United  States  to  interpose  to  arrest  that 
Act  by  a  judicial  negative,  or  veto.  At  least  it  would  seem 
to  be  clear  that  the  mere  passing  of  a  legislative  Act  can¬ 
not  justify  such  an  interposition,  when  such  Act  has  been 
passed  by  a  State,  under  an  independent  and  conceded 


20 


power,  which  makes  provision  for  ar  measure  of  State  poli¬ 
cy  entirely  within  its  acknowledged  competency  to  provide 
for  ;  which  is  not  on  the  face  of  it,  or  by  its  terms  or  intent, 
repugnant  to,  or  in  conflict  with,  the  Constitution  or  any 
law  of  Congress  ;  which  must  of  necessity  be  a  valid  Act  of 
legislation  both  in  its  inception  and  maturity,  and  in  its 
operation,  so  long  as  it  does  not  in  fact,  and  by  actual  col¬ 
lision,  conflict,  or  in  any  manner  interfere  with,  the  fair  en¬ 
joyment  of  any  rights,  property  or  interests  secured  by  a 
paramount  act  of  Congress.  The  case  here  supposed  is 
precisely  the  one  now  before  the  court.  Let  us  see  exactly 
what  this  case  is,  and  how  it  illustrates  the  question  of 
jurisdiction  here  presented. 

The  Act  of  the  Legislature  of  New  York  which  this  Court 
is  called  upon  to  arrest,  and  forbid  being  carried  into  effect, 
is  an  Act  for  establishing,  or  authorizing,  a  bridge  over  the 
Hudson  at  Albany.  I  do  not  understand  that  the  power  of 
the  State  to  establish  a  bridge  at  this  point,  possessing  as 
it  does  both  banks  of  the  river,  and  the  whole  river  in  its 
whole  extent,  is  denied  or  questioned  in  any  quarter.  The 
utmost  that  is  said  in  derogation  of  the  power  is,  that  it  is 
subject  to  the  power  of  Congress  “  to  regulate  commerce.” 
What  that  amounts  to  we  shall  see. 

In  the  language  of  Mr.  Chief  Justice  Marshall  in  Gibbons 
vs.  Ogden,  this  Legislative  act  “  formed  a  portion  of  that 
immense  mass  of  legislation  which  embraces  every  thing 
within  the  territory  of  a  State  not  surrendered  to  the  gene¬ 
ral  government  ;  all  which  can  be  most  advantageously 
exercised  by  the  States  themselves.  Inspection  laws, 
quarantine  laws  of  every  description,  as  well  as  laws  for 
regulating  the  internal  commerce  of  a  State,  and  those  which 
respect  turnpike  roads,  ferries,  £fc.,  are  component  parts  of 
this  mass.” 

The  power  to  establish  this  bridge  stands  on  precisely 
the  same  ground  as  the  power  to  make  roads,  canals  and 
railways  on  the  land.  It  is  impossible  to  distinguish  between 


21 


the  two  cases.  If  the  bridge  is  subject  to  the  power  of 
Congress  over  commerce,  because  it  spaus  a  navigable 
water,  so  are  the  highways  of  commerce  on  the  land,  sub¬ 
ject  to  the  same  power,  wherever  such  highwa}Ts  are,  or 
may  be  made,  routes  and  channels  of  foreign  or  inter-State 
commerce — a  position  which  I  shall  have  occasion  to  dwell 
upon  more  emphatically  for  another  purpose,  in  a  subsequent 
part  of  this  argument. 

Indeed,  the  power  in  these  cases  is  one  power,  and  not 
two  powers.  The  power  to  make  a  road  in  or  through  a 
State,  includes  the  power  to  make  that  road  continuous  by 
a  ferry  or  a  bridge,  over  a  navigable  stream.  A  ferry-boat 
is  a  moveable  bridge  ;  a  bridge  is  a  roadway  over  a  river. 
Every  ferry  over  a  navigable  water  is  an  impediment  or 
hindrance  to  some  extent,  sometimes  to  a  very  great  extent, 
to  the  use  of  the  highway  of  the  river  in  the  direction  of 
the  stream.  In  some  cases,  this  impediment  is  vastly  greater 
than  a  bridge  produces,  provided  with  a  suitable  draw.  A 
bridge  is  a  substitute  for  a  ferry,  and  whenever  a  bridge  can 
be  conveniently  established,  with  suitable  provision  for  the 
fair  accommodation  and  use  of  whatever  passes  up  and 
down  on  the  highway  of  the  river,  such  bridge  is  demanded 
as  a  better  and  more  perfect  roadway  than  the  ferry. 
There  is  hardly  one  mark  of  the  advancing  civilization  of 
the  age  in  which  we  live,  greater  or  more  striking  than  the 
vast  increase  of  bridges,  and  the  progressive  skill  and  genius 
employed  in  their  construction,  all  over  the  world.  It  has 
been  a  subject  of  rival  claims  to  superior  civilization  and 
advancement  between  England  and  France — the  number, 
magnificence  and  superiority  of  the  bridges  in  these  coun¬ 
tries  respectively.  What  would  Paris  be  without  the 
bridges  over  the  Seine  ?  What  would  London  be  without 
the  bridges  over  the  Thames  ?  And  these  are  navigable 
streams.  The  Thames  is  navigable  for  barges  thirty-seven 
miles  above  London.  Twenty-five  years  ago,  more  than 
three  thousand  lighters,  barges  and  punts  were  in  use 


22 


above  the  lowest  London  bridge.  More  steamers  bow  the 
heads  of  their  chimneys  to  the  various  bridges  over  the 
Thames  at  London,  in  passing  under  them,  probably  in 
one  hour,  than  would  have  occasion  to  pass  our  bridge 
at  Albany  in  a  week.  In  the  early  part  of  this  cen¬ 
tury,  in  England,  a  Parliamentary  commission  was  raised, 
consisting  of  twelve  members,  including  the  then  Speaker, 
and  the  Chancellor  of  the  Exchequer,  with  Thomas  Tel¬ 
ford,  the  great  architect  of  the  period,  as  the  engineer 
of  the  commission,  to  promote  bridge  building,  especially 
in  the  northern  district  of  Scotland,  where  this  civiliz¬ 
ing  process  was  moi’e  especially  needed.  In  1812,  under 
the  auspices  of  this  commission,  1486  bridges  had  been 
constructed,  many  of  them  large  erections,  and  some  of 
great  magnitude.  There  is  hardly  one  of  the  great  rivers 
in  the  more  advanced  countries  of  Western  Europe 
that  is  without  its  bridge  or  bridges,  though  these  rivers 
almost  invariably  traverse,  or  separate,  two  or  more 
States.  A  bridge  is  built,  by  any  sovereign,  over  any 
river,  on  that  part  of  it  within  his  own  territory  and  juris¬ 
diction,  he  taking  care  to  provide  due  and  fair  accommo¬ 
dation  for  the  passing  of  the  bridge  b}7  all  commerce  and 
navigation  in  which  his  own  people,  or  other  States,  are 
interested.  The  government  of  Prussia  has  just  completed 
a  new  and  magnificent  stone  bridge  over  the  Rhine,  at 
Cologne,  in  place  of  the  bridge  of  boats  which  for  so 
many  years  has  occupied  that  position.  This  can  only  be 
passed  by  a  draw. 

In  the  provision,  by  a  ferry  or  a  bridge,  for  the  crossing 
of  a  navigable  river,  two  highways  meet  and  cross  each 
other,  just  as  two  highways  on  the  land,  running  at  right 
angles  to  each  other,'  meet  and  cross  one  another.  Two 
objects  meeting  at  the  crossing,  cannot  occupy  the  same 
space  on  the  same,  or  nearly  the  same,  plane  or  level.  They 
must  accommodate  each  other,  and,  if  necessary,  the  police 
power  of  the  State  must  step  in  to  regulate  the  matter. 


23 


In  all  this  there  is  no  distinction  to  be  made  between  the 
water  and  the  land. 

It  would  be  to  insist  on  comparative  barbarism,  on  re¬ 
turning  to  a  state  of  comparative  primitiveness  in  science, 
arts  and  general  civilization,  to  insist,  at  this  day,  on  the 
antique  and  obsolete  notion  of  the  superior  and  monopoliz¬ 
ing  rights  of  navigation  on  navigable  streams,  as  against 
all  rights,  or  any  but  the  most  restricted  and  meagre  rights, 
of  traverse  across  such  streams.  The  modern  railroad,  the 
greatest  of  all  advances  made  in  modern  times  in  physical 
improvement,  giving  to  commerce  and  locomotion  on  the 
land  a  facility,  rapidity  and  precision  which  even  steam 
cannot  rival  on  the  water — this  must  forever  put  an  end  to 
the  idea,  once  perhaps  prevalent,  that  navigation  on  rivers 
is  entitled  to  anything  more  than  equal  rights,  equal  privi¬ 
leges,  equal  facilities,  equal  protection,  with  the  commerce 
and  travel  which  follow  their  great  and  crowded  routes 
across  these  rivers. 

I  venture  to  state,  without  fear  of  contradiction,  that, 
in  the  very  instance  before  the  Court,  taking  the  evi¬ 
dence  in  the  case  in  spite  of  all  its  contradictions  and 
exaggerations,  that  more  tons  of  freight  alone — a  great 
many  more — now  cross  the  river  at  Albany,  yearly,  in  con¬ 
nection  with  the  l'ailroads  (and  with  a  bridge  the  amount 
will  be  greatly  increased,)  than  will  have  occasion  to  use 
the  draw  for  passing  the  bridge  up  and  down  the  river. 
Canal  boats  and  barges  will  pass  under  the  bridge,  and  so 
will  the  whole  class  of  small  steam-tugs,  with  or  without 
a  joint  in  their  smoke  pipes,  without  inconvenience.  This 
will  leave  but  comparatively  a  small  part  of  the  navigation 
employed  at  or  above  Albany,  to  pass  the  bridge  by  means 
of  the  draw.  What  in  the  world  is  there  in  sense  or  reason, 
what  is  there  that  would  not  be  shocking  and  shameful  to 
sense  and  reason,  to  hinder  the  State  and  public  authorities 
from  according  to  the  vast  amount  of  commerce  that  tra¬ 
verses  the  river,  even  if  not  half  as  large  as  it  is,  equal  pro- 


24 


tection  and  equal  facilities  with  that  which  moves  on  the 
river  in  the  direction  of  the  stream?  And  if  some  of  the 
commerce  in  these  two  branches  must  submit  to  partial  in¬ 
conveniences,  what  is  there  in  sense  or  reason,  to  justify  the 
laying  of  the  whole  burthen  on  that  which  traverses  the 
river,  and  none  at  all  on  that  which  employs  navigation  in 
the  direction  of  the  stream  ? 

And,  then,  for  the  persons  who  are  to  be  accommodated 
in  traversing,  and  those  in  passing  up  and  down  the  river 
at  this  point.  The  comparison  is,  of  three  to  four  thousand 
daily  of  those  who  cross  the  river  at  this  point,  to  less  than 
150  who  pass  up  and  down.  Can  anybody  suggest  a  reason 
why  the  government  should  not  take  care  of  the  rights  and 
interests  of  the  three  or  four  thousand,  as  well  as  of  the 
150 — of  the  million  and  more  of  passengers  yearly  in  one 
direction,  as  well  as  of  the  35,000  in  the  other  direction  ? — 
especially  while  in  one  case  the  travel,  with  all  the  vast 
business  and  social  interests  connected  with  it,  flows  on 
steadily  from  years’  end  to  years’  end,  and  in  the  other  it  is 
periodical,  and  is  wholly  suspended  for  three  or  more 
months  in  the  year. 

If  the  power  to  make  roads,  canals  and  railways  is  a  con¬ 
ceded  and  indispensable  power  belonging  to  the  State, 
which  it  would  be  a  shameful  dereliction  of  goveimmental 
duty  not  to  exercise,  to  the  extent  of  its  ability,  it  must  be 
equall}T  a  conceded  and  indispensable  power  belonging  to 
it,  to  establish  bridges  over  the  navigable  waters  within  its 
territorial  sovereignty  and  juiisdiction,  wherever  they  are 
practicable,  and  the  public  interest  demands  them,  and 
which  it  would  equally  be  a  shameful  dereliction  of  duty 
not  to  exercise.  I  know  of  no  distinction  that  can  be  made 
between  the  waters  within  the  territorial  limits  of  the  State, 
and  the  land,  in  regard  to  soveregnty  and  jurisdiction  in  the 
State  Government.  There  can  be  no  greater  error,  in  my 
judgment,  than  to  suppose  that  the  Constitution  of  the 
United  States,  by  any  of  its  provisions,  or  by  any  inference 


25 


to  be  drawn  from  the  character,  necessities  or  objects  of 
the  government  established  by  it,  takes  from  the  State  its 
general  sovereignty  and  jurisdiction  over  its  nayigable 
waters,  any  more,  or  in  any  greater  degree,  than  it  takes 
from  it  its  general  sovereignty  and  jurisdiction  on  the  land. 
The  State  is  sovereign  over  the  waters  in  the  same  sense, 
and  in  the  same  degree,  that  it  is  on  the  land.  As  sovereign, 
it  commands  in  all  public  places,  as  on  highways  and  rivers. 
A  river  is  a  highway  devoted  to  the  use  of  the  public,  just 
in  the  same  sense  in  which  a  road  is  a  highway  devoted  to 
the  use  of  the  public.  That  grand  and  comprehensive  pro¬ 
vision  of  the  Constitution,  that  “  the  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens 
of  the  several  States,”  which  so  beautifully  constitutes  the 
people  of  the  United  States  one  people,  without  trenching 
on  the  separate  communities  into  which  they  are  divided,  or 
the  general  sovereignty  of  the  governments  of  those  commu¬ 
nities,  undoubtedly  enlarges  that  public  to  whose  use  the 
navigable  waters  of  the  several  States  are  devoted,  from  the 
public  of  the  State  to  the  public  of  the  United  States.  And 
in  exactly  the  same  manner,  and  in  the  same  degree,  are  the 
highways  of  a  State  devoted  to  the  use  of  the  whole  people 
of  the  United  States,  instead  of  being  limited  to  the  people 
of  the  State.  No  State  can  impose  any  restrictions,  terms 
or  conditions,  on  citizens  of  other  States,  in  the  use  of  its 
highways,  whether  of  water  or  on  land,  than  such  as  it  im¬ 
poses  on  its  own  citizens.  And  it  can  give  its  own  citizens 
no  privileges,  immunities  or  advantages  in  the  use  of  these 
highways,  that  do  not  at  once,  and  equally,  belong  to  the 
citizens  of  all  the  States.  But  the  State,  as  sovereign,  does 
not  the  less  command  in  these  public  places,  as  it  does  else¬ 
where,  within  its  territorial  limits. 

The  boundaries  of  the  State  of  New  York  include  all  the 
waters  of  the  great  Bay  of  New  York  as  far  as  Sandy  Hook, 
or  to  the  open  sea,  and  the  waters  of  the  Sound  to  the 
eastern  line  of  the  State  across  that  arm  of  the  sea  ;  and 
4 


26 


of  course  they  include  all  its  interior  waters.  Within  all 
these  boundaries,  water  and  land  included,  the  State  is 
everywhere  Sovereign.  It  is  sovereign  in  the  same  sense 
in  which  it  was  sovereign  before  the  Constitution,  notwith¬ 
standing  the  surrender  of  certain  specified  powers  which 
it  cannot  now  exercise  at  all,  and  notwithstanding  the  fact 
that  among  its  general  powers  not  surrendered,  there  are 
some  of  which  the  exercise  is  subject  to  restriction  and 
limitation  by  the  exercise  of  some  power  on  the  part  of 
the  general  government  which  has  been  surrendered.  The 
State  has  not  lost  its  general  sovereignty  and  jurisdiction 
because  it  has  surrendered  its  independent  power  to  lay 
duties  on  imports  and  exports,  and  to  lay  duties  of  tonnage; 
nor  because  its  power  to  legislate  in  respect  to  its  public 
highways,  whether  of  water  or  on  land,  may  be  subject,  in 
a  certain  degree,  to  the  paramount  power  of  Congress  “to 
regulate  commerce  nor  because  the  judiciary  of  the 
United  States  is  clothed  exclusively  with  the  admiralty  and 
mai'itime  jurisdiction  of  the  country.  In  this  latter  par¬ 
ticular,  this  Court  has  said  that  this  power  does  not  carry 
a  cession  of  the  water  where  these  cases  may  arise,  or  the 
general  jurisdiction  over  them.  This  adheres  to  the  ter¬ 
ritory,  and  to  the  government  to  which  the  territory  be¬ 
longs.  (U.  S.  vs.  Bevans,  3  Wheat.  R.  316.) 

The  State  owns  the  soil  under  all  the  navigable  waters 
within  its  boundaries — taking  the  term  “navigable”  in  its 
common  law  meaning,  as  applied  to  waters  where  the  tide 
flows  and  ebbs.  The  State  owns  the  soil  under  the  navi¬ 
gable  waters  of  the  Bay  of  New  York,  and  of  the  Hudson, 
and  it  grants  the  soil  at  its  pleasure.  (Commissioners  of 
Canal  Fund  vs.  Kempshall ;  26  Wendell’s  R.  p.  414;  Ver- 
plauk’s  opinion.)  The  Commissioners  of  the  Land  Office 
have  power  to  grant  these  lands,  and  have  frequently  exer¬ 
cised  that  power.  The  State  has  granted  the  land  under 
water  around  the  city  of  New  York,  to  that  city,  for  the 
purpose  of  constructing  piers,  wharves  and  docks  for  the 


27 


uses  of  commerce,  at  that  great  centre  of  trade  and  navi¬ 
gation.  At  other  points  and  places  on  the  Hudson,  the 
State  has  made  similar  grants  for  similar  uses.  The  State 
itself  constructed  the  great  pier  and  basin  at  Albany,  in 
connection  with  its  canals,  and  has  granted  land  under  the 
water  on  the  opposite  side  of  the  river  at  this  place,  for 
piers  and  wharves.  And  wherever  such  grants  have  been 
made,  encroachments  have  necessarily  been  made  to  some 
extent,  on  the  bed  and  highway,  and  public  easement,  of 
these  navigable  waters.  And  nobody  that  I  have  heard  of, 
has  thought  of  questioning  the  sovereignty  and  jurisdiction 
of  the  State  in  this  matter,  or  its  right  to  grant  the  land, 
and  to  authorize  these  encroachments  on  the  free  flow  and 
navigation  of  the  river.  The  general  goverment  itself  has 
received  frequent  cessions  from  the  State,  by  formal  trans¬ 
actions,  both  of  the  soil  under  these  same  waters,  and  of 
the  general  jurisdiction  (with  some  special  reserves)  over 
the  sites  thus  ceded.  It  has  received  these  cessions  in  the 
Bay  of  New  York,  and  at  various  points  in  the  Hudson 
River,  for  light  houses,  and  other  erections,  necessary  for 
national  uses. 

Some  years  ago  the  State  authorised  a  bridge  over  the 
Hudson  at  Troy.  This  was  opposed  by  those  interested  in 
the  navigation  above  Troy,  where  the  tide  flows,  but  after 
a  trial  in  the  State  Court,  and  a  decision,  accompanied  by 
a  very  learned  and  able  opinion,  in  favor  of  the  right,  the 
opposition  was  abandoned,  and  there  the  bridge  now  stands, 
with  only  a  very  narrow  and  inconvenient  draw,  for  the 
accommodation  of  the  navigation  above  it.  Many  years 
ago  the  State,  in  connection  with  its  canals,  constructed  a 
dam  across  the  river  at  a  point  below  the  flow  of  the  tide, 
with  a  lock  through  which  all  navigation  above  has  to 
pass. 

In  virtue  of  the  same  sovereignty  and  jurisdiction,  which 
the  State  has  been  exercising  ever  since  the  Union  was 
formed,  it  has  now  undertaken  to  establish  a  bridge  at 


28 


Albany.  This  is  opposed,  almost  of  course,  by  those  who 
are  interested  in  the  navigation  above  this  point,  and  by 
the  parties  most  interested  in  maintaining  the  bridge  at 
Troy. 

I  do  not  understand,  however,  that  the  general  sovereignty 
and  jurisdiction  of  the  State,  over  the  waters  of  the 
river  are  denied,  or  the  general  right  to  make  or  autho¬ 
rise  erections  therein,  provided  the  freedom  of  navi¬ 
gation  be  preserved.  What  is  insisted  on,  is,  that  the  right 
to  establish  a  bridge  is  subject  to  the  power  of  Congress 
to  regulate  commerce  ;  that  Congress  has  legislated  under 
this  power  in  the  Act  for  granting  licenses  for  the  coasting 
trade  ;  that  the  complainants,  and  others,  are  engaged  in 
navigating  the  river  under  the  authority  of  such  licenses ; 
that  these  licenses  secure  to  them  the  right  to  the  free  and 
unobstructed  navigation  of  the  river,  at  and  above  Albany  ; 
and  that  in  their  opinion,  and  in  the  opinion  of  their  wit¬ 
nesses,  the  bridge,  if  built,  will  not  leave  to  them,  what 
they  consider  a  free  and  unobstructed  navigation. 

The  bridge,  it  must  be  remembered,  has  not  been  erected  ; 
it  was  not  erected,  or  begun,  when  this  suit  was  brought, 
and  it  has  not  yet  been  erected,  or  begun,  because  two 
years  and  a  half  ago,  the  judicial  power  of  the  United 
States,  was  successfully  invoked  to  lay  the  State,  or  its 
agents,  under  interdict  against  the  erection.  The  State,  by 
the  very  terms  and  conditions  of  its  enactment,  had  made 
the  most  careful  and  anxious  provisions  for  preserving  and 
maintaining  “  the  free  navigation  ”  of  the  river — a  matter 
in  which  the  State  had  quite  as  deep  a  stake  as  any  body 
else,  in  or  out  of  the  State,  could  have.  The  free  naviga¬ 
tion  was  to  be  preserved,  first  by  the  elevation  of  the 
bridge  “  so  as  to  allow  under  it  the  free  passage  of  canal 
boats,  and  barges  without  masts,”  in  which,  in  truth,  the 
great  bulk  of  the  commerce  above  Albany  is  borne ;  and 
next,  by  a  draw,  or  draws,  “  of  sufficient  width  to  admit  the 
free  passage  of  the  largest  vessels  navigating  the  river.” 


29 


The  Act,  with  its  supplement,  fixes  the  minimum  width  of 
the  draw,  or  draws,  which  must  therefore  be  of  the  most 
ample  width,  and  such  as  could  only  be  constructed  by  the 
advance  and  triumphs  of  modern  science  and  skill.  Other 
provisions  are  made  for  rendering  voluntary  aid,  without 
cost,  by  means  of  steam  tugs,  to  facilitate  vessels  in  pass¬ 
ing  the  draws  of  the  bridge ;  and  other  provisions  still, 
lor  the  prompt  application  of  remedial  measures  for  keep¬ 
ing  the  bed  and  channel  of  the  river  free,  if  by  possible 
chance,  the  piers  of  the  bridge  should  be  found  to  cause 
any  obstruction  in  them.  Finally,  the  Act  provides,  under 
severe  penalties  for  any  neglect,  for  the  prompt  and  efficient 
management  of  the  bridge,  and  of  the  draw  or  draws,  to 
accommodate  and  facilitate  vessels  in  a  safe  and  easy 
passage  through  the  bridge,  at  all  times  of  the  day  and 
night. 

Now  it  is  in  the  face  of  all  these  careful  provisions,  em¬ 
bodied  in  the  Act  itself,  for  preserving  the  free  navigation 
of  the  river,  before  the  erection  of  the  bridge  is  begun,  and 
before  the  right  or  interest  of  any  human  being,  as  claimed 
under  an  act  of  Congress,  has  been  in  any  manner  en¬ 
croached  upon  or  disturbed,  that  a  question  of  repugnance 
to  the  Constitution,  or  of  conflict  with  such  act  of  Con¬ 
gress,  in  the  law  of  the  State  authorizing  the  bridge,  has 
been  raised,  which  the  Courts  of  the  United  States  have 
been  asked  to  entertain,  and,  upon  the  anticipation  of 
events  that  no  mortal  man  can  say  will  ever  happen,  and, 
on  testimony,  of  necessity  and  in  the  nature  of  the  subject, 
amounting  to  nothing  but  a  purely  speculative  prognosti¬ 
cation  of  evil,  to  forbid  the  law  of  the  State  being  carried 
into  effect. 

Now,  what  I  insist  upon  is,  that  no  question  of  repug¬ 
nance  or  conflict  has  arisen  in  this  case  of  which  the  Court 
can  take  cognizance  ;  that  no  judicial  case  can  arise,  where 
the  question  is  one  of  repugnance  or  conflict,  not  apparent 
on  the  face  of  the  legislative  Act,  until  an  actual  collision 


30 


of  rights  or  interests  takes  place  in  the  working  or  opera¬ 
tion  of  the  law  against  which  repugnance  or  conflict  is 
alleged;  that  no  judicial  case  can  arise,  in  law  or  equity, 
on  an  allegation  of  repugnance  or  conflict,  upon  a  naked 
or  unexecuted  law  of  a  State  ;  that  if  it  can  arise  where 
the  repugnance  or  conflict  is  palpable  on  the  face  of  the 
law,  it  cannot  arise,  on  such  an  allegation,  upon  a  naked 
or  unexecuted  law  of  a  State,  where  that  law,  on  its  face, 
and  in  its  terms,  and  plain  intent  and  meaning,  is  confes¬ 
sedly  not  repugnant  to  the  Constitution,  or  in  conflict  with 
any  act  of  Congress ;  and  that  the  Court  cannot  create  a 
judicial  case  for  itself,  nor  can  parties  create  a  judicial  case 
for  it,  when  the  case  is  such  as  I  have  described,  by  means 
of  allegations,  and  volumes  of  proofs,  offered  and  received, 
to  show  that  it  is  intended  to  carry  the  law  into  effect,  and 
that,  if  carried  into  effect,  apprehensions  and  opinions  are 
entertained  that  certain  rights  or  interests  claimed  under 
an  Act  of  Congress,  will  or  may  be  impaired  or  disturbed, 
and  thus  a  conflict  between  the  law  of  the  State  and  such 
Act  of  Congress  would  or  might  be  established.  I  hold 
that  the  Court  cannot  anticipate  a  conflict  of  laws  in 
any  case;  that  there  is  no  conflict  of  laws  in  a  case 
like  this  before  the  Court,  of  which  the  Court  can  take 
cognizance,  until  an  actual  collision  of  rights  and  inte¬ 
rests  takes  place  to  show  the  conflict,  and  to  lay  the 
ground  for  a  judicial  case ;  that  the  Court  must  wait 
until  the  rights  or  interests  of  some  party,  claiming  under 
the  authority  of  the  United  States,  have  been  impaired 
or  disturbed  by  some  party  acting  under  the  State  law, 
or  is  alleged  to  have  been  so,  before  it  can  entertain  so 
grave  a  question  as  that  of  conflict  between  the  two  laws, 
and  the  two  governments  enacting  them  respectively, 
and  where  the  result  may  be  the  condemnation  of  the 
law  of  the  State,  upon  mere  speculation  as  to  its  ope¬ 
ration,  and  the  arrest  of  the  government  of  the  State, 
in  a  measure  which  may  be  of  vital  importance  to  the 


31 


interests  and  prosperity  of  tlie  people  over  which  its 
sovereignty  is  exercised. 

If  a  naked,  and  as  yet  unexecuted,  State  law  can  be 
brought  under  the  revision  of  the  National  Judiciary,  in 
the  form  of  a  proceeding  in  Equity,  and  there  forbidden  to 
he  carried  into  effect,  not  from  what  may  appear  on  the 
face  of  the  law,  but  from  testimony  received  to  show  what 
will  be  its  probable,  or  possible,  operation  if  not  thus  for¬ 
bidden,  then  I  think  no  one  can  fail  to  see  that  the  Judiciary, 
in  all  such  cases,  performs  an  office  quite  foreign  to  its 
character  as  a  Judiciary — an  anomalous  office,  partly  execu¬ 
tive  and  partly  legislative,  and  such  as  we  must  all  be  quite 
sure  was  never  intended  to  be  created,  or  bestowed,  on  any 
branch  of  the  National  Government. 

The  subject  of  vesting  just  such  an  authority  in  Con¬ 
gress,  or  in  some  other  hands  to  be  devised  for  the  purpose, 
was  proposed,  and  very  earnestly  debated,  in  the  Convention 
which  framed  the  Constitution  of  the  United  States. 
There  was  hardly  any  other  single  topic  which  was  longer 
under  debate,  or  more  deliberately  considered.  Congress 
was  the  body  in  whose  hands  it  was  generally  thought  best 
to  lodge  the  power  of  revision  and  veto,  over  State  legisla¬ 
tion  ;  though  suggestions  were  made  of  a  Commissioner  for 
this  purpose  to  reside  in  each  State,  or  to  make  the  Gov¬ 
ernors  of  the  States  appointees  of  the  General  Government, 
and  clothe  them  with  the  power  of  revision  and  an  absolute 
veto.  Many  of  the  leading  men  in  the  Convention  advo¬ 
cated  such  a  power,  Mr.  Madison,  perhaps,  more  persistently 
than  anybody  else.  The  main  object  was  the  exercise  of 
the  very  identical  power  we  are  now  considering — that  of 
revising  and  arresting,  by  an  absolute  negative,  all  State 
laws  which  might  be  deemed  to  be  repugnant  to  the  Con¬ 
stitution,  or  in  conflict,  or  likely  to  come  into  conflict, 
with  any  law  of  Congress.  Of  course,  the  question  of  re¬ 
pugnance  or  conflict  was  to  arise  on  the  naked  law,  before 
it  should  be  carried  into  effect,  and  was  to  be  determined 


32 


upon  the  character  and  provisions  of  the  law  itself,  or 
upon  such  an  inquest,  and  such  investigations  into  the  pro¬ 
bable,  or  possible,  operation  of  the  law,  if  allowed  to  be 
carried  into  effect,  as  should  satisfy  the  revising  authority. 
It  was  not  until  a  late  period  in  the  session  of  the  Con¬ 
stitutional  Convention  that  this  project  was  abandoned. 
It  was  not  abandoned  until  its  advocates  became  satisfied 
that  the  States  would  indignantly  reject  any  Constitution 
containing  such  a  provision — one  which  would  have  effect¬ 
ually  stripped  them  of  all  proper  sovereignty,  and  left  them 
with  no  more  authority  or  dignity  than  a  Board  of  Super¬ 
visors  in  a  county.  Fortunately,  when  the  powers  to  be 
given  to  the  Judiciary  of  the  United  States,  came  at  last  to 
be  adjusted  and  settled,  and  the  language  carefully  selected 
and  fixed  by  which  those  powers  were  created  and  con¬ 
ferred  ;  when  it  was  seen  that  its  authority  extended  to  all 
judicial  cases  arising  under  the  Constitution,  laws  and 
treaties  of  the  United  States,  and  when,  finally,  the  impor¬ 
tant  and  vital  principle  and  provision  was  added  that  the 
Constitution,  laws  and  treaties  of  the  United  States  should 
be  the  supreme  law  of  the  land,  “  anything  in  the  Consti¬ 
tution  or  laws  of  any  State  to  the  contrary  notwithstand¬ 
ing  when  all  this  was  done,  all  parties  became  satisfied 
that  a  much  better,  wiser  and  safer  adjustment  had  been 
made  of  the  difficult  and  delicate  problem  of  securing  har¬ 
mony  between  the  State  Governments  and  their  laws,  and 
the  Constitution  and  laws  of  the  United  States,  than  could 
have  been  done  by  any  direct  power  of  revision  and  nega¬ 
tive  over  State  legislation.  (Vide  Curtis  Hist,  of  Consti¬ 
tution,  vol  2,  pp.  430,  437,  438,  439  and  440 ;  5  Elliot’s 
Debates,  pp.  170-4,  209,210,  251,321,  468,  469,  539,  and 
Index,  tit.  “Acts,”  p.  604  ) 

It  will  not  do  to  say  that  this  power  of  revision  and  nega¬ 
tive  was  merely  shifted  from  Congress,  where  it  was  first 
proposed  to  lodge  it,  to  the  Judiciary.  No  such  power  was 
conferred  by  the  Constitution,  and  if  it  had  been,  and  had 


33 


been  so  understood,  that  instrument  would  certainly  have 
been  rejected  by  the  States.  The  power  in  the  hands  of 
the  Judiciary  would  certainly  not  have  been  deemed  less 
exceptionable  than  in  the  hands  of  Congress.  Where  in¬ 
quisition  and  investigations  are  to  be  made,  and  volumes  of 
testimony  taken  and  weighed,  on  subjects  so  peculiarly  of 
parliamentary  or  legislative  cognizance,  as  in  the  very  case 
now  under  review  in  this  Court,  before  a  question  of  repug¬ 
nance  or  conflict  alleged  against  a  State  law  can  be  decided  ; 
certainly  no  one  can  say  that  such  a  case  is  not  fitter  for  a 
parliamentary  committee  than  for  the  Judiciary.  Must  not 
every  one  say  that  it  is  fit  only  for  such  a  committee,  and 
for  legislative  action  and  determination,  and  not  at  all  for 
a  judicial  body  ?  Certainly,  every  one  must  see  that  the 
true  way  and  the  only  way — a  method  perfectly  effectual 
too  for  all  practical  purposes — of  dealing  with  this  subject 
of  State  legislation,  to  keep  it  in  practical  harmony  with  the 
Constitution  and  laws  of  the  United  States,  and  at  the  same 
time  relieve  the  necessary  interference  with  it,  in  cases  of 
alleged  repugnance  or  conflict,  of  all  that  is  most  offensive 
to  the  dignity  and  sovereignty  of  the  State,  was  the  very 
course  adopted  by  the  Constitution.  By  this  means,  all 
State  legislation,  passed  under  admitted  powers,  stands  as 
valid  law,  on  the  authority  of  the  sovereignty  which  enacts 
it,  until  a  conflict  declares  itself  by  some  actual  collision  of 
rights  and  interests  between  parties,  claiming  respectively 
under  State  legislation  and  under  the  Constitution  or  legis¬ 
lation  of  Congress,  and  then  the  Judiciary  is  invoked  to  set¬ 
tle  the  question  on  a  judicial  case,  and  in  a  strictly  judicial 
way.  (2  Curtis  Hist,  of  Const.,  p.  54.) 

It  adds,  I  think,  force  to  the  view  I  have  ventured  to  pre¬ 
sent  on  this  subject,  that  previous  to  the  Albany  Bridge 
Case,  no  occasion  had  ever  been  found  on  which  it  was 
thought  proper  to  employ  a  Preliminary  Injunction  to  arrest 
a  State  law,  as  yet  but  a  naked  and  unexecuted  enactment, 
and  a  valid  law  on  the  face  of  it,  on  an  allegation  of  repug- 
5 


34 


nance  or  conflict.  And  if  the  Injunction  should  be  made 
perpetual,  it  would  be  the  first  example  and  instance  of 
such  a  conclusion  being  reached,  in  any  similar  case.  If  I 
am  mistaken  in  this,  the  Court  will  know.  I  have  not  found 
or  heard  of  such  a  case. 

In  the  leading  case  of  Gibbons  vs.  Ogden  the  collision  of 
rights  and  interests  was  actual  and  flagrant  when  the  injuc- 
tion  was  asked  for  and  granted  in  the  State  Court,  and  of 
course  when  the  case  came  before  this  Court  on  appeal. 

In  the  Blackbird  Creek  case,  (8  Curtis,  105,)  a  dam  had 
been  constructed  across  the  creek,  and  a  collision  in  respect 
to  rights  and  interests  had  occurred. 

Applications  for  Injunctions  to  prevent  the  erection  of 
bridges  over  navigable  waters  have  been  asked  for  in  several 
instances,  and  the  Courts  have  entertained  the  cases — the 
question  of  jurisdiction  not  having  been  raised.  It  seems  to 
have  been  assumed  that  the  Court  had  the  power  to  grant 
the  Injunction,  if  a  case  for  it  was  made  out  ;  but  no  such 
Injunction  has  been  granted,  I  think,  in  any  case.  Yet  the 
distinction  does  not  seem  to  have  been  adverted  to,  between 
the  act  of  a  mere  trespasser  in  placing  obstructions  in  a 
public  river,  complained  of  in  an  English  Court  of  Chancery 
as  threatening  injury  to  an  unquestioned  private  right,  and 
erections  authorized  by  State  legislation,  which,  on  its  face, 
contemplates  no  unlawful  obstruction,  and  which,  as  I  hold, 
cannot  be  complained  of  in  this  Court,  by  a  private  party 
claiming  under  a  law  of  Congress,  so  long  as  his  right,  what¬ 
ever  it  be,  remains  actually  undisturbed. 

In  the  Cuyahoga  River  Bridge  case,  before  Mr.  Justice 
McLean,  (3  McLean  R.  226)  the  complainant  relied  on  the 
ordinance  of  1787,  for  his  claim  to  the  free  navigation  of 
this  river,  which  he  insisted  would  be  obstructed  by  a  draw 
bridge.  The  application  was  denied. 

In  the  Rock  Island  Bridge  case,  before  the  same  judge, 
(4  McLean’s  R.  517)  the  application  for  an  injunction  was 
denied.  There  the  United  States  was  a  party,  and  com- 


35 


plained  not  only  of  prospective  injury  to  the  navigation,  if 
the  bridge  should  be  erected— a  ground  of  claim  in  the  case 
which  the  Court  declared  the  United  States  as  aprivate  party 
could  not  set  up — but  complained  also  of  special  injury, 
already  done  by  excavations  and  otherwise,  to  Rock  Island, 
of  which  the  United  States  was  proprietor.  The  case 
turned  on  this  latter  complaint. 

In  the  cases  arising  in  New  Jersey  before  Mr.  Justice 
Grier,  (vol.,  Alb.  Bridge  case,  74)  the  application  for  in¬ 
junctions  was  denied.  In  these  cases  there  was  a  com¬ 
plaint  of  the  proposed  erections  as  public  nuisances,  and 
they  appear  to  have  been  considered  in  that  view. 

In  the  Wheeling  Bridge  case,  (19  Curtis  R.  621)  the  ap¬ 
plication  for  an  injunction  to  prevent  the  bridge  being  built, 
was  in  behalf  of  Pennsylvania,  and  was  put  expressly  on 
the  ground  of  nuisance.  Before  the  case  came  to  a  hearing 
the  bridge  had  been  completed,  and  a  supplemental  Bill  set 
forth  that  fact,  and  complained  of  the  bridge,  not  as  a 
prospective,  but  as  an  actual  nuisance,  doing  special  dam¬ 
age  to  the  complainant.  On  this  ground  the  case  appears  to 
have  been  heard  and  decided. 

In  the  case  now  before  the  Court,  on  the  hearing  for  a  Pre¬ 
liminary  Injunction,  Mr.  Justice  Nelson  appears  to  have  con¬ 
sidered  the  case  as  analagousto  cases  in  the  English  Court 
of  Chancery,  where  the  title  of  the  complainant  was  clear, 
but  the  obstructions  denied,  and  where  the  question  of 
obstruction  or  not,  was  the  only  one  to  be  tried.  These 
were  cases  of  unauthorized  obstructions  by  individual  en¬ 
terprise.  And  even  there,  Chancery  would  not  try  the 
question  of  obstruction,  which  here  the  Circuit  Court  pro¬ 
posed  to  do,  and  thereupon  issued  the  Injunction  till  the 
further  hearing  on  that  point  in  Equity. 

The  Court  regarded  the  Complainants  as  having  an  un¬ 
questioned  “legal  right  to  a  free  and  unobstructed  naviga¬ 
tion  of  the  Hudson  River,  secured  by  the  Constitution  and 
Acts  of  Congress and  stated  that  the  right  was  under¬ 
stood  not  to  be  denied  on  the  argument. 


36 


The  mistake  in  this  statement,  I  suppose,  consists  in  in¬ 
advertently  stating  the  “  legal  right  ”  supposed  to  be  con¬ 
ceded,  altogether  too  broadly.  The  right  to  navigate  the 
river  was  admitted,  but  the  right  to  build  the  bridge,  just 
as  authorized  by  legislative  enactment,  was  insisted  on  at 
the  same  time,  and  any  right  of  navigation  which  could  not 
be  enjoyed  with  such  a  bridge,  was  not  admitted,  but  de¬ 
nied.  The  legal  right  of  the  complainant  “  to  a  free  and 
unobstructed  navigation,”  in  the  broad  sense  of  these  terms, 
was  not  therefore  clear,  and  was  not  unquestioned.  There 
was  an  admitted  right  of  navigation,  but  not  in  exclusion 
of  the  bridge,  and  just  such  a  bridge  as  the  State  law  con¬ 
templated.  The  bridge  as  contemplated,  would  leave  all 
the  navigation  the  complainant  was  entitled  to,  and  any 
larger  right  of  navigation  than  this  was  denied.  This  was 
the  defendant’s  position. 

Here  were  opposing  claims  of  right  under  the  legislation 
of  different  governments.  The  laws  in  both  cases  were 
passed  by  perfectly  competent  authority  ;  and  no  supremacy 
could  be  asserted  for  the  law,  under  which  the  complain¬ 
ants  claimed,  over  the  law  under  which  the  defendant 
claimed,  until  the  right  of  the  complainants,  whatever  it 
might  be,  was  encroached  upon  by  the  measure  adopted 
under  the  State  law.  The  laws  themselves  did  not  conflict; 
and  no  case,  as  I  suppose,  could  be  made  for  the  Court 
until  an  actual  collision  of  rights,  or  what  might  be  claimed 
to  be  such,  should  take  place.  Then  an  action  at  law  would 
decide  between  the  opposing  claims. 

But  all  this  was  anticipated  by  the  Court.  On  a  Bill  in 
Equity,  a  broad,  and  disputed  right  of  navigation,  but  still 
undefined,  was  held  to  belong  to  the  complainants.  And, 
thereupon,  though  the  State  law  contemplated  no  obstruc¬ 
tion  to  any  reasonable  right  of  navigation,  testimony  was 
received  on  the  one  side  and  the  other,  on  which  the  Court 
might  try  the  question,  whether,  or  not,  an  unlawful  ob¬ 
struction  to  the  vague  right  of  navigation  as  held  by  the 


37 


Court  to  belong  to  tbe  complainants,  might  not  be  created 
if  tbe  bridge  should  be  constructed. 

We  hold  that  the  Court,  on  this  Bill  in  Equity,  if  consid¬ 
ered  merely  as  a  Bill  to  quiet  a  right  by  injunction,  erred 
in  entertaining  either  the  question  of  right,  or  the  question 
of  obstruction. 


IY. 

But  I  suppose  it  is  not  to  be  doubted  that  all  these  cases 
where  suits  are  brought  in  Equity  to  protect  the  rights 
and  interests  of  the  complainants  in  the  navigation  of  pub¬ 
lic  rivers  against  bridges,  and  the  like  erections,  if  they  can 
be  maintained  at  all,  must-  stand  on  the  charge  of  public 
nuisance  against  the  alleged  obstructions,  and  cannot  rest 
on  any  other  ground  of  Chancery  jurisdiction.  It  is  not 
an  isolated  private  right  which  is  set  up  in  these  cases.  It 
is  a  right  enjoyed  in  common  with  the  public,  or  at  least 
such  portion  of  the  public  as  have  a  common  authority 
from  the  Government  of  the  United  States.  What  is  com¬ 
plained  of,  along  with  the  injury  to  a  personal  right,  is  an 
unlawful  obstruction  of  a  public  navigable  river,  or  com¬ 
mon  highway.  This  is  a  public  nuisance,  according  to  the 
doctrine  of  the  common  law. 

The  complainants  in  the  case  before  the  Court,  have  not 
neglected  in  their  Bills  to  declare  that  the  bridge,  if  erected, 
will  be  a  common  nuisance.  In  my  further  consideration 
of  this  case,  I  shall  treat  it  as  standing  on  this  ground. 

The  first  question  to  be  considered,  is,  whether  the  Court 
has  jurisdiction  and  authority  to  declare  an  obstruction  to 
navigation,  actual  or  threatened,  in  a  public  river,  placed 
there  without  the  authority  of  the  United  States,  to  be  a 
public  nuisance. 


38 


I  have  referred  already  to  several  case3  in  which  the 
Court  seemed  to  take  this  jurisdiction  for  granted.  The 
question  of  jurisdiction  does  not  appear  to  have  been 
raised. 

In  the  Wheeling  Bridge  case,  it  is  not  to  be  denied  that 
a  majority  of  the  Court  held  the  bridge,  as  erected,  to  be 
a  public  nuisance,  because  in  their  judgment  it  obstructed 
the  accustomed  use  of  the  River  Ohio,  to  a  certain  class  of 
vessels,  navigating  that  river ;  and  the  right  of  the  Court 
to  entertain  the  case  on  a  Bill  in  Equity,  as  a  question  of 
nuisance  was  elaborately  maintained.  Two  members  of 
the  Court,  however,  dissented  from  this  opinion,  the  Chief 
Justice  being  one  of  them,  who  utterly  denied  the  juris¬ 
diction. 

As  this  was  the  first  case,  and  is  thus  far  I  believe  the 
only  one,  in  which  this  question  of  jurisdiction  was  con¬ 
sidered,  I  hope  it  may  not  be  thought  going  too  far,  to 
ask  that  the  question  should  not  be  deemed  settled  past  all 
propriety  of  reconsidering  it.  Perhaps  that  case  might  be 
advantageously  reconsidered,  in  more  aspects  than  one. 
The  decision  was  by  a  divided  Court.  The  decree  in  the 
case,  was  never  carried  into  effect,  because  Congress  inter¬ 
posed  by  a  special  Act  of  Legislation,  under  its  power 
to  establish  post-roads,  to  affirm  the  State  Legislation  in 
the  premises,  as  not  illegal,  and  not  creating  a  nuisance, 
and  to  adopt  the  bridge,  just  as  it  was  built,  as  a  post¬ 
road.  And  I  suppose  all  parties  and  persons,  are  now 
satisfied  that  it  would  have  been  a  great  misfortune,  and  a 
great  calamity,  not  to  Virginia  only,  but  to  the  whole 
country,  if  the  erection  of  that  bridge  had  been  prevented, 
or  if  being  erected,  it  had  been  abated  by  the  Court,  as  a 
nuisance.  The  case,  therefore,  as  a  whole,  is  hardly  one  to 
be  followed  as  a  precedent. 

The  majority  of  the  Court  put  the  right  of  the  com¬ 
plainant,  the  State  of  Pennsylvania,  to  complain  of  the 
bridge,  on  the  ground  of  private  injury  from  a  public 


39 


nuisance.  She  did  not  sue  in  her  capacity  of  a  sovereign 
State.  She  was  before  the  Court  in  the  position  and  light 
of  any  natural  person,  or  ordinary  corporation.  She  was 
not  engaged  in  navigating  the  river  under  a  license  from 
the  United  States,  and  therefore  could  not  complain  that 
her  rights  of  navigation  under  a  law  of  Congress,  were  in¬ 
terfered  with.  But  the  right  of  all  the  people  of  the 
United  States  to  the  free  navigation  of  the  river  was  in¬ 
sisted  on,  as  having  been  somehow  or  other  secured  by  the 
legislation  of  Congress.  Regulations  of  commerce  by  Con¬ 
gress,  under  which  licenses  for  the  coasting  trade  had  been 
granted,  and  ports  of  entry  established  on  the  river,  were 
referred  to ;  and  so  was  the  compact  between  Virginia  and 
Kentucky  in  relation  to  the  free  navigation  of  the  Ohio, 
and  the  sanction  of  that  compact  by  Congress.  This  com¬ 
pact  seems  to  have  been  mainly  relied  on  as  establishing 
the  general  right  of  free  navigation  under  the  authority  of 
Congress.  But  the  complainant,  as  a  legal  person  or  cor¬ 
poration,  who  was  not  engaged  in  the  navigation  of  the 
river  in  any  way,  and  who  had  therefore  no  violated  rights 
in  that  particular  to  complain  of,  could  not  make  a  judicial 
case  for  itself  in  this  Court  on  that  ground.  If  the  legisla¬ 
tion  ot  Congress  secured  the  free  navigation  of  the  river 
to  all  who  chose  to  navigate  it,  and  if  the  legislation  of 
Virginia  authorizing  the  bridge,  was  in  conflict  with  that 
right,  still  the  complainant  was  not  engaged  in  the  naviga¬ 
tion,  and  no  individual  rights  of  hers  in  that  respect  had 
been  disturbed  by  the  bridge.  And  since  she  could  not 
claim  the  protection  of  the  Court  against  the  legislation  of 
Virginia  as  being  herself  engaged  in  navigating  the  river, 
under  the  authority  of  Congress,  she  was  in  no  condition 
to  invoke  that  protection  for  others  who  were  thus  engaged. 
It  was  not,  then,  her  individual  right  of  navigation  which 
was  complained  of  as  interfered  with  by  an  obstruction 
constituting  a  public  nuisance.  She  set  up  certain  losses 
and  damage  to  her  interests  in  works  of  internal  improve- 


( 


40 


ment  of  which  she  was  proprietor,  as  flowing  directly  from 
the  obstruction,  and  on  this  ground  of  private  injury  from 
the  obstruction,  which  she  charged  as  a  nuisance,  her  case 
rested. 

The  jurisdiction  of  the  Court  in  this  view  of  the  case  was, 
as  I  have  said,  elaborately  maintained.  It  seems  to  have 
been  put  mainly  on  the  ground  that  this  Court  had  adopted 
the  practice  of  the  high  Court  of  Chancery  in  England, 
where  jurisdiction  in  analagous  cases  was  entertained.  But 
the  question  of  jurisdiction  in  this  Court  was  entirely  dis¬ 
tinct  from  any  mere  question  of  chancery  practice.  The 
question  whether,  on  a  Bill  in  Equity,  this  Court  will  pro¬ 
ceed  according  to  the  practice  of  State  Courts,  or  according 
to  the  practice  of  the  Court  of  Chancery  in  England,  does 
not  seem  to  me  to  meet  the  question  of  jurisdiction.  The 
Court  say,  “  the  usages  of  the  high  Court  of  Chancery, 
whenever  the  jurisdiction  is  exercised,  govern  the  proceedings.” 
But  this  does  not  go  one  step  towards  deciding  whether  the 
jurisdiction  in  this  case  can  be  exercised  by  this  Court, 
according  to  law.  If  it  cannot,  no  usages  or  practice  of  any 
Court  can  be  applied  to  it. 

The  jurisdiction  of  the  Courts  of  the  United  States  is 
special  and  not  general,  and  is  just  what  the  Constitution 
and  laws  of  Congress  confer  on  them,  and  this  is  as  true  of 
their  jurisdiction  in  equity  as  in  law.  In  Wheaton  and 
Donaldson  vs.  Peters,  (8  Peters,  658,)  the  Court  said  :  “  It 
is  clear  there  can  be  no  common  law  of  the  United  States. 
There  is  no  principle  which  pervades  the  Union,  and  has 
the  authority  of  law,  that  is  not  embodied  in  the  Constitu¬ 
tion  or  laws  of  the  Union.  The  common  law  could  be  made 
a  part  of  our  federal  system  only  by  legislative  adoption. 
When,  therefore,  a  common  law  right  is  asserted,  we  must 
look  to  the  State  in  which  the  controversy  originated.” 

This  Court  must  have  some  law  to  give  it  jurisdiction.  It 
has  no  general  common  law  jurisdiction.  Its  authority  to 
pronounce  the  bridge  a  nuisance  must  rest  on  the  legislation 


41 


of  Congress  ;  either  on  such  legislation  directly  applied  to 
the  subject,  or  on  the  Act  of  Congress  which  makes  the  laws 
of  the  State  where  the  controversy  originated,  the  rule  of 
decision  in  a  Court  of  the  United  States.  If  there  had  been 
any  legislation  of  Congress  which  made  this  bridge,  as  par¬ 
tially  obstructing  the  free  navigation  of  the  Ohio,  a  public 
nuisance,  or  if  the  common  law  of  Virginia  as  modified  by 
the  Statute  authorizing  the  bridge,  made  the  bridge  a  pub¬ 
lic  nuisance,  then  the  Court  had  jurisdiction  so  to  pronounce  ; 
otherwise  it  had  no  jurisdiction. 

It  cannot  be  pretended  that  the  bridge  was  a  nuisance  by 
the  laws  of  Virginia.  No  State  Court  of  Virginia  could 
have  so  pronounced.  No  Court  of  the  United  States,  sitting 
in  that  State,  could  have  so  pronounced.  A  Statute  of  the 
State  had  authorized  the  bridge,  and  that  was  the  end  of 
the  law  in  that  State,  so  far  as  the  allegation  of  public 
nuisance  was  concerned. 

Upon  what  legislation  of  Congress,  then,  applicable 
directly  to  the  subject,  could  the  complainant  rely  to  main¬ 
tain  the  jurisdiction  of  the  Court. 

It  is  not  pretended  that  there  was  any  enactment  of 
Congress,  in  terms,  declaring  obstructions,  partial  or  other¬ 
wise,  in  navigable  rivers  generally,  or  in  the  Ohio  in 
particular,  whether  by  bridges,  or  other  erections,  public 
nuisances.  There  was  no  direct  Legislation  of  Congress, 
on  the  subject  of  bridges  over  navigable  waters ;  none  de¬ 
fining  what  erections  should  constitute,  or  be  deemed, 
obstructions,  and  what  should  not,  or  what  obstructions 
should  be  deemed  a  nuisance,  and  what  should  not.  And 
it  is  difficult  to  conceive  how  this  Court  could  have  juris¬ 
diction  to  define  and  declare  what  erections  in  a  navigable 
river,  should  be  deemed  obstructions,  and  public  nuisances, 
and  what  should  not,  while  it  is  certain  that  Congress, 
from  which  alone  its  authority  on  the  subject  must  be 
derived,  has  never  Legislated  on  the  subject  of  obstructions 
to  navigable  rivers  in  any  form  whatever. 

6 


42 


A  public  nuisance  is  a'public  offence,  and  those  who  estab¬ 
lish  or  maintain  it,  are  liable  to  indictment  and  punishment 
as  public  offenders.  There  can  be  no  public  nuisance 
which  is  not  a  public  offence.  And  there  can  be  no  better 
test  of  the  right  of  jurisdiction  in  this  Court,  in  a  civil  case, 
to  declare  any  act  complained  of  a  nuisance,  than  to  en¬ 
quire  if  any  legislation  of  Congress,  has  declared  that  act 
to  be  a  public  offence.  The  Court  in  this  case  concede 
that  it  has  no  criminal  jurisdiction  in  the  matter,  because 
Congress  has  passed  no  law,  declaring  the  act  of  establish¬ 
ing  such  a  bridge  a  public  offence,  and  prescribing  the 
punishment  of  it.  Certainly,  that  is  an  abundantly  good 
reason  why  the  Court  cannot  exercise  criminal  jurisdiction 
in  the  case ;  but  it  is  an  equally  good  reason,  why  a  civil  suit 
cannot  be  maintained  for  a  private  injury  arising  from  the 
act  complained  of.  If  there  is  no  legislation  of  Congress, 
which  makes  the  erection  of  a  bridge  obstructing  naviga¬ 
tion,  a  public  nuisance  and  offence,  whether  provision 
is  made,  or  not,  for  its  punishment  criminally,  then  cer¬ 
tainly  no  private  suit  can  be  maintained  for  special 
damage,  arising  from  it,  on  the  ground  of  its  being  a  pub¬ 
lic  nuisance.  It  cannot  be  held  to  be  a  public  offence, 
except  by  the  legislation  of  Congress.  There  isconfesedly 
no  such  direct  legislation.  There  is  nothing,  therefore,  to 
warrant  the  Court  in  deeming  the  bridge  to  be  a  public 
nuisance,  or  treating  it  as  such. 

At  common  law,  the  unauthorised  obstruction  of  a  navi¬ 
gable  river,  is  a  public  offence',  and  punishable  by  indictment. 
(4.  Bl.  com.  167.)  But,  as  we  have  seen,  there  can  be  no 
common  law  offence  of  this  kind  against  the  United  States. 
Ten  thousand  obstructions  of  navigable  rivers  in  the  United 
States  might  be  made,  without  one  public  offence  against 
the  United  States,  until  Congress  shall  declare  any  such 
act  to  be  a  public  offence.  Obstructing  the  mails  of  the 
United  States,  is  not  a  public  offence,  until  Congress  so 
declares  it.  Counterfeiting  the  coin  of  the  United  States 


43 


is  not  a  public  offence,  till  Congress  so  declares  it.  Surely 
the  Courts  of  the  United  States,  have  no  larger  authority 
over  the  navigable  waters  of  the  United  States,  within  the 
territorial  limits  of  the  several  States,  than  they  have  over 
the  public  mails,  and  the  public  coin,  in  the  absence  or 
want  of  legislation  by  Congress,  to  provide  for  their  pro¬ 
tection.  If  Congress  has  thought,  as  it  might  well  think, 
that  the  States  themselves  were  the  best  authorities  to  pro¬ 
tect  their  public  waters  against  unauthorsed  obstructions, 
and  that  serious  obstructions  of  their  own  navigable  rivers 
by  State  authority,  was  too  remote  a  probability  or  possi¬ 
bility,  to  require  any  legislation  on  the  part  of  Congress, 
certainly,  there  can  be  neither  any  authority,  or  any 
occasion,  for  the  Courts  of  the  United  States  to  intervene 
in  the  matter. 

It  seems  to  me  to  be  sufficient  to  rest  the  objections  to 
the  jurisdiction  entertained  by  the  Court  in  the  Wheeling- 
Bridge  case,  where  I  have  now  placed  them.  But  I  shall 
have  occasion  to  recur  to  that  case  in  another  part  of  m}r 
argument,  and  to  present  some  further  views  which  cannot 
fail,  I  think,  to  add  strength  to  those  already  submitted. 

It  is  most  apparent  to  my  mind,  that  the  Court  in  the 
Wheeling  Bridge  case,  in  declaring  the  bridge  over  the 
Ohio  to  be  an  unlawful  obstruction,  and  a  public  nuisance, 
as  against  the  sovereign  rights  and  authority  of  the 
United  States — for  the  decision  was  exactly  that,  or  it 
was  nothing — declared  what  Congress  had  never  declared, 
and  had  never  authorized  the  Court  to  declare.  I  hope 
I  shall  be  believed  when  I  say,  that  in  submitting  my 
views  of  that  case,  I  do  so  without  any  abatement  what¬ 
ever  of  the  profound  respect  for  this  Court  which  it 
has  been  the  habit  and  the  pride  of  my  whole  life  to  en¬ 
tertain.  I  confess,  at  the  same  time,  to  the  deepest  anxiety, 
as  a  matter  of  the  highest  importance  to  great  public  inter¬ 
ests,  that  that  case  shall  not  be  deemed  by  this  Court  as  a 
settled  precedent  for  the  leading  doctrines  which  may  be 


44 


thought  to  be  embraced  in  the  decision,  and.  certainly  not 
as  establishing  the  jurisdiction  and  authority  of  the  Court, 
without  some  more  explicit  legislation  of  Congress  on  the 
subject  than  any  we  now  have,  to  declare  what  shall,  and 
what  shall  not,  be  deemed  obstructions  in  a  public  river,  and 
when  any  such  obstruction  shall,  and  when  it  shall  not,  be 
deemed  a  public  nuisance. 

To  come  back  now  to  the  case  before  the  Court.  I  ask 
the  Court  to  apply  to  this  case,  the  reasoning  I  have  ven¬ 
tured  to  employ  in  reference  to  the  Wheeling  Bridge  case. 

If  I  do  not  greatly  deceive  myself,  it  is  quite  clear,  that 
this  Court  has  no  authority  to  decide  that  a  bridge,  erected 
by  State  authority,  over  a  navigable  river  within  the  terri¬ 
torial  limits  of  the  State,  is  an  obstruction  to  the  naviga¬ 
tion  of  such  a  character  as  to  be  a  public  nuisance.  It  has 
no  such  authority,  because  Congress  has  not  given  it  any 
such  authority,  and  it  has  no  common  law  jurisdiction  in 
such  cases,  or  in  any  ease.  Congress  has  passed  no  laws 
to  forbid  obstructions  in  public  rivers,  or  to  declare  any 
obstruction  a  public  nuisance.  I  go  further  than  this,  and 
maintain  that  it  has  adopted  no  legislation  the  object  of 
which  has  been  to  control  State  legislation  over  the  navi¬ 
gable  rivers  within  the  limits  of  a  State,  in  respect  to  erec¬ 
tions,  such  as  piers,  wharves  and  bridges,  in  or  over  such 
rivers,  or  in  -respect  to  any  effect  which  may  be  produced 
by  such  erections  upon  the  freedom  of  navigation.  But  I 
shall  have  more  to  say  on  this  last  position  in  another  part 
of  this  argument. 


Y. 

The  Court  cannot,  of  course,  interpose  to  prevent  the 
creation  of  a  public  nuisance,  at  the  instance  of  a  private 


45 


party,  unless  that  party  shows  that  some  special  damage 
or  injury  will  accrue  to  some  personal  right,  property  or 
interest  of  his  own,  from  the  nuisance.  For  this  reason, 
and  to  give  the  complainants  the  right  to  prosecute  their 
complaint  in  this  Court  instead  of  a  State  Court,  they 
allege  that  they  have  a  special  right  to  the  personal  use 
and  enjoyment  of  the  free  navigation  of  the  river  under  a 
license  for  the  coasting  trade,  issued  to  them,  respectively, 
under  the  authority  of  an  Act  of  Congress,  and  that  the 
bridge,  if  erected,  will  greatly  interfere  with,  and  limit,  the 
use  and  enjoyment  of  such  licenses.  They  also  insist  that 
the  bridge  will  derange,  interrupt  and  diminish,  and  do 
irreparable  injury  to  the  trade,  commerce  and  business, 
connected  with  the  navigation  of  the  river,  in  which  they 
are  personally  engaged.  And  one  of  them  complains  that 
the  bridge  will  greatly  and  irretrievably  impair  the  value 
of  his  real  and  personal  property  in  Troy. 

Having  thus,  as  they  suppose,  established  their  personal 
right  to  complain  of  the  proposed  bridge  as  a  public  nui¬ 
sance,  they  ask  for  the  interposition  of  the  Court  to  forbid 
its  erection. 

'  But  several  things  are  necessary  to  be  established  before 
the  Court  can  interpose  in  the  way  demanded.  It  must 
appear : 

That  the  proposed  bridge  will,  if  established,  be  a  public 
nuisance ; 

That  the  allegations  of  special  damage  or  injury  to  the 
complainants,  as  set  forth  by  them,  or  that  some  of  them, 
are  such  as  this  Court  can  take  cognizance  of  ; 

That  the  right  or  interest,  the  injury  to  which  is  com¬ 
plained  of,  is  a  clear  right  or  interest  at  law,  in  the  com¬ 
plainants  ;  and, 

That  that  right  or  interest  is  of  such  a  nature,  and 
the  injury  of  such  a  character,  and  extent  or  degree, 
that  adequate  redress  could  not  be  had  in  an  action  at 

law. 


46 


I  have  already  shown,  or  endeavored  to  show,  that  the 
Court  cannot  take  cognizance  of  any  allegations  of  the 
complainants,  to  make  them  a  substantive  ground  of  judicial 
action,  which  consist  of  complaints  that  the  erection  of 
the  proposed  bridge  threatens  to  impair  the  value  of  their 
real  and  personal  property  in  Troy,  and  to  injure  their  gene¬ 
ral  business  affairs  and  interests,  carried  on  at  that  city,  or 
elsewhere.  Much  less  can  the  Court  take  such  cognizance 
of  any  allegations  of  the  complainants  to  the  effect  that  the 
State  had  entered  on  a  measure  of  mistaken  public  policy, 
which,  instead  of  benefitting,  would  inflict  injury  on  its 
own  public  interests,  and  on  its  own  people,  either  gener¬ 
ally,  or  in  particular  localities. 

The  general  charge  in  the  case  is  that  of  public  nuisance 
by  obstructing  a  public  river — in  other  words,  a  charge 
that  the  defendant  is  about  to  do  an  act  criminal  in  its 
nature,  an  act  which  would  be  an  offence  against  the  United 
States. 

None  of  the  allegations  of  private  injury  to  the  com¬ 
plainants,  in  this  case,  can  be  received,  as  putting  them 
in  a  position  to  bring  this  charge  of  public  nuisance 
against  the  proposed  bridge,  in  the  form  of  a  Bill  for  an 
Injunction,  except  that  which  affirms  their  personal  right, 
under  the  authority  of  an  act  of  Congress,  to  the  free  navi¬ 
gation  of  the  river.  It  is  the  right  to  the  use  and  enjoy¬ 
ment  of  the  license  they  set  up,  and  of  the  free  naviga¬ 
tion  of  the  river  under  it,  which  they  insist  would  be 
directly  interfered  with  by  the  proposed  bridge,  which 
gives  them  the  right,  if  any  they  have,  to  complain  of  the 
bridge  as  a  public  nuisance. 

It  must  be  remembered  that  the  only  public  nuisance 
of  which  this  Court  could  take  cognizance,  in  any  form  of 
action,  information  or  complaint,  is,  a  public  nuisance,  and 
a  public  offence,  against  the  government  of  the  United 
States.  A  nuisance  and  offence  against  a  State  govern- 


47 


ment  is  not  within  its  cognizance.  The  proper  mode, 
undoubtedly,  of  bringing  before  this  Court  a  charge  of 
nuisance  committed,  or  threatened,  against  the  United 
States,  would  be  upon  an  Information,  to  -which  the  At¬ 
torney  General  of  the  United  States  should  be  a  party. 
(Opinion  of  Ch.  J.  Taney,  in  the  Wheeling  Bridge  case, 
19  Custis,  p.  655.)  The  United  States  is  the  principal 
party  in  interest  in  the  question  of  such  nuisance,  and 
ought  to  be  heard,  by  its  proper  officer,  before  the  ques¬ 
tion  of  nuisance,  or  no  nuisance,  should  be  decided.  And 
the  only  ground  on  which  a  Court  of  Chancery  will  hear 
this  charge  of  public  nuisance  from  a  private  party  (if  it 
ought  to  or  will  hear  it  at  all)  is  that  of  a  direct,  imme¬ 
diate  and  irreparable  injury,  actual  or  threatened,  to  the 
use  and  enjoyment  of  some  right,  property  or  interest  of 
such  party,  and  for  the  redress  of  which  an  action  at  law 
would  be  inadequate.  Allegations  of  remote,  contingent, 
incidental  or  speculative  interests,  will  not  be  listened  to. 
Besides,  on  a  Bill  in  Equity  in  a  Court  of  the  United 
States,  such  private  party  could  only  be  heard  to  com¬ 
plain  of  private  injury  to  the  use  and  enjoyment  of  some 
right,  property  or  interest  held  and  enjoyed  under  the 
Constitution  or  Laws  of  the  United  States. 

In  this  case,  the  complainants  must  stand  on  the  par¬ 
ticular  right  claimed  by  them  to  the  free  navigation  of 
the  river,  under  the  authority  of  their  license  from  the 
United  States,  and  the  allegation  that  the  use  and  enjoy¬ 
ment  of  such  license  and  right  will  be  directly  interfered 
with,  and  injured,  by  the  bridge,  and  nuisance,  if  per¬ 
mitted  to  be  established. 

On  this  state  of  the  case,  the  question  presents  itself 
whether  the  particular  private  injury  here  set  forth,  if 
any  should  ever  accrue  from  the  erection  of  the  bridge, 
is  not  one  for  which  an  adequate  and  complete  redress 
could  be  had  in  an  action  at  law.  If  it  could,  it  is  clear 


48 


upon  the  unquestioned  doctrine  of  the  law  on  the  subject, 
that  the  complainants  cannot  be  heard  to  bring  this  charge 
of  nuisance  against  the  bridge  on  this  Bill  in  Equity  for  an 
Injunction.  There  is,  besides,  a  statute  of  the  United 
States  forbidding  the  Courts  to  entertain  a  case  in  equity 
when  a  plain  and  adequate  remedy  in  the  case  may  be 
had  at  law.  (1  Stats,  at  large,  73.) 

Of  the  adequacy  of  the  remedy  at  law  in  this  case, 
there  cannot  be  a  doubt.  Nobody  pretends  that  the  bridge 
is  to  shut  up  the  river.  The  complainants  will  always 
be  able  to  take  their  vessels  through  the  draw.  If  they 
experience  all  the  difficulty,  delay  and  danger  which 
their  worst  apprehensions  anticipate,  there  will  still  be 
no  difficulty  in  ascertaining  their  loss  and  damage  in  an 
action  at  law.  The  loss  by  delays,  whether  of  minutes  or 
days,  and  the  loss  from  injuries  to  vessels  dr  cargoes,  by 
collisions  with  the  bridge  or  otherwise,  and  any  extra 
expense  attending  the  passage,  are  all  as  easily  ascertaina¬ 
ble  in  dollars  and  cents,  as  damages  in  a  thousand  other 
cases  constantly  tried  in  our  courts.  The  losses  ascer¬ 
tained  on  one  occasion  would  be  a  guide  to  the  amount 
of  the  like  losses  on  other  occasions.  And  even  the 
amount  of  damage  sustained  by  depreciation  in  the  value 
of  the  complainant’s  property,  real  or  personal,  in  Troy, 
or  by  lessening  the  profits  of  their  general  business — if 
these  remote  and  incidental  effects  of  the  bridge,  sup¬ 
posing  them  to  occur,  could  be  made  the  subject  of  claims 
for  damages  at  all — could  be  ascertained  without  any 
special  difficulty. 

The  complainants  cannot  be  heard  in  this  case  as  the 
representatives  of  a  class — those  navigating  the  river 
under  licenses  for  the  coasting  trade,  for  example;  or  as 
the  representatives  of  the  navigating  interest  generally 
on  the  Hudson;  or  as  the  representatives  of  Troy,  West 
Troy  and  Green  Island.  They  cannot  be  heal'd  to  ask 


49 


the  Court  to  forbid  the  erection  of  the  bridge,  in  the 
interest  of  the  public,  and  because  it  will  be  a  public 
nuisance.  If  the  Court  arrest  the  erection,  it  will  not  be 
to  protect  the  public,  or  any  portion  of  the  public,  from 
the  bridge  as  a  public  nuisance.  The  government  which 
represents  the  public,  and  is  the  guardian  of  its  interests, 
is  not  before  the  Court,  and  has  not  complained  of  the 
bridge  as  a  nuisance,  or  asked  the  Court  for  its  interpo¬ 
sition.  Until  it  does  so,  the  Court  cannot  volunteer  to  be 
the  guardians  of  the  public  interests  in  this  regard.  The 
Court  can  only  consider  the  question  of  public  nuisance, 
or  not,  in  the  interest  of  the  complainants,  and  not  at 
all  in  the  interest  of  the  public,  and  if  it  puts  its  interdict 
on  the  bridge,  it  must  be  for  the  protection  of  the  com¬ 
plainants,  and  for  them  alone.  (Opinion  of  Ch.  J.  Taney,  in 
Wheeling  bridge  case,  1 9  Custis,  p.  655.)  The  question  for 
the  Court,  in  this  view,  is,  whether  the  extraordinary  pro¬ 
tection  which  the  complainants  demand  is  indispensible 
in  order  to  secure  them  in  the  enjoyment  of  rights  and 
interests  which,  of  themselves  alone,  are  of  such  great 
magnitude,  and  such  pressing  importance,  and  at  the  same 
time  are  of  such  a  character,  that  a  remedy  at  law  could 
not  reach  or  cover  them  with  any  adequate  redress.  To 
propound  such  a  question  is  to  answer  it. 

The  misfortune  of  this  case,  brought  before  the  Court 
on  a  Bill  for  an  Injunction,  is,  that  if  the  Court  grants  the 
Injunction  to  protect  the  complainants,  it  forecloses  the 
public,  and  the  government  of  the  United  States  as  repre¬ 
senting  the  public,  on  the  question  of  the  charge  against 
the  bridge  as  a  public  nuisance,  without  that  public 
being  allowed  to  be  heard  on  that  question,  as  it  is 
entitled  to  be  heard.  The  fact  that  the  government  of 
the  United  States,  against  which  this  offence  of  nuisance 
is  committed,  if  it  be  a  nuisance,  has  not  complained,  and 
7 


60 


does  not  complain  of  it,  through  its  proper  officer,  should 
be  taken  to  bear  strongly  against  all  present  interference 
with  it.  The  complainants  have  no  right  to  ask  the  Court 
to  interpose  for  their  individual  protection  in  a  mode 
which,  if  their  suit  is  successful,  forecloses  the  public  on 
the  main  issue  in  the  case,  without  suit  or  a  hearing  on  its 
part,  while  the  law  is  open  to  them,  by  a  plain  remedy 
for  full  redress,  whenever  they  are  touched  by  any  actual 
injury  to  their  personal  rights  or  interests  from  the 
establishing  of  the  bridge.  If  not  satisfied  with  their 
remedy  at  law,  and  if,  moreover,  they  really  think  the  bridge 
will  be  a  public  nuisance,  and  a  public  crime,  and  are  really 
desirous  that  the  public  as  well  as  themselves,  shall  be  pro¬ 
tected  from  it,  let  them  apply  to  the  Attorney  General  of  the 
United  States,  the  proper  law  officer  of  the  government, 
to  institute  and  prosecute  proceedings  in  behalf  of  the 
the  government,  against  the  bridge.  Then  the  issue 
would  be  fairly  before  the  court.  If  the  Attorney  General 
can  be  persuaded  that  the  General  Government,  by  reason 
of  anything  in  the  Constitution,  or  in  any  legislation  of 
Congress,  commands  in  the  waters  of  the  Hudson,  instead 
of  the  government  of  New  York,  in  regard  to  what  may, 
or  may  not,  be  deemed  obstructions  to  the  highway  of  that 
river,  by  works  of  public  improvement  and  public 
accommodation,  constructed  under  State  authority j  and  if 
he  can  be  persuaded  that  the  proposed  bridge  will,  if 
erected,  be  an  unlawful  obstruction,  and  a  public  nui¬ 
sance  and  public  crime,  it  will  be  his  duty  to  proceed 
against  it.  In  such  a  case,  the  Court  would  be  relieved 
from  all  embarrassment,  and  all  undue  responsibility. 
The  Wheeling  bridge  case  is  an  example  of  the  injustice 
which  is  done  the  Court,  when  it  is  asked  to  pronounce  a 
bridge  to  be  a-  public  nuisance  at  the  instance,  and  in  the 
interest,  of  a  private  party,  and  when  the  public  against 
which  the  offence  bears,  if  there  be  any,  is  not  consulted 


51 


or  represented  before  the  Court.  In  that  case,  the  deci¬ 
sion  of  the  Court  that  the  bridge  must  be  deemed  a  pub¬ 
lic  nuisance,  was  reversed  by  the  very  extraordinary 
mode  of  a  public  law,  passed  for  this  purpose,  by  the 
very  government  against  which  the  alleged  nuisance  was 
supposed  to  have  been  committed. 

This  is  not  the  case  of  a  nuisance,  if  a  nuisance  at 
all,  such  as  a  private  trespasser  may  commit  by  placing 
unlawful  obstructions  in  the  highway  of  a  road  or  a  river. 
Our  bridge  is  to  be  erected  under  color,  at  least,  of  sover¬ 
eign  authority,  and  is  not  to  be  treated  as  a  naked  tres¬ 
pass,  growing  into  an  act  of  public  criminality.  A  State 
may  err  in  the  exercise  of  its  sovereignty,  but  it  cannot 
commit  a  crime  or  a  misdemeanor.  This  bridge  is  not  a 
public  oifence  against  the  State,  or  the  public  of  the  State. 
It  is  not  a  purpresture  by  the  laws  of  the  State.  A  purpres¬ 
ture  is  an  unauthorized  encroachment  on  the  property  or 
soil  of  the  sovereign,  in  a  highway,  river  or  harbor.  (Per  Ch. 
Kent,  in  Attorney  General  v.  Utica  Insurance  Company,  2 
J.  Ch.  R.,  p.  381.)  The  soil  of  the  Hudson  river,  out  of  all 
question,  is  the  property  of  the  State,  and  the  State  could 
not  commit  a  purpresture  on  its  own  property.  If  it  is  a 
nuisance  of  this  particular  kind,  called  a  purpresture ,  as 
against  the  government  of  the  United  States,  then  it  is  so 
because  the  United  States  owns,  or  is  the  sovereign  over,  the 
soil  of  the  Hudson  river,  and  not  the  State  of  New  York, 
and  because  the  bridge  will  be  an  unlawful  obstruction  to 
their  river.  If  the  United  States  do  not  own  the  soil  of 
the  Hudson  river,  then  whatever  else  the  bridge  may  be, 
it  is  not  a  nuisance  of  the  kind  called  purpresture.  It 
would  be  difficult  to  maintain  that  a  State  could  commit 
a  nuisance  of  any  kind  against  the  United  States;  but  if, 
by  reason  of  the  supremacy  of  the  National  Government 
in  particular  things,  the  erection  of  this  bridge,  though 


52 


authorized  by  the  State,  would  be  an  unlawful  obstruction 
to  a  public  river  where  that  government  commands,  and 
hostile  to  the  constitution  and  laws  of  that  government, 
and,  in  this  sense,  something  to  be  called  a  public  nui¬ 
sance;  if  this  be  all  so,  there  is  no  reason  why  the  Court 
should,  but  every  reason  why  it  should  not,  entertain  a  suit 
and  motion  to  put  down  the  supposed  nuisance  at  the 
instance,  and  solely  in  the  interest,  of  a  private  party ,  who 
has  an  adequate  remedy  at  law  for  his  private  injury,  if 
he  sustains  any.  Certainly  it  would  be  safer  to  wait  for  the 
proper  law  officer  of  the  government,  whose  business  it  is 
to  take  care  of  the  public  interests  in  this  regard,  if  there 
be,  or  is  likely  to  be,  any  such  nuisance  as  is  charged,  to 
complain  of  the  bridge,  and  ask  the  Court  to  apply  the 
proper  corrective. 


YI. 

The  question  whether  the  bridge  in  this  case  will,  if 
erected,  be  a  public  nuisance,  assuming  now  that  the 
Court  can  and  will  entertain  that  question  on  these  Bills 
cf  complaint,  turns,  of  course,  on  the  point  whether  it 
will  create  an  unlawful  obstruction  to  that  free  naviga¬ 
tion  of  the  river  to  which  the  public  are  supposed  to  be 
entitled,  and  which  the  complainants  insist  is  secured  to 
the  public  by  the  Constitution  and  the  legislation  of  Con¬ 
gress. 

Allowing  then,  to  the  Act  for  granting  licenses  for  the 
Coasting  trade,  and  to  the  licenses  granted  under  it,  all 
the  authority  and  effect  which  can  be  claimed  for  them 
as  conferring  a  personal  right  on  all  who  hold  them,  to 


63 


the  free  navigation  of  the  Hudson  river,  and  of  all  the 
rivers  and  public  waters  of  the  United  States,  the  ques¬ 
tion  now  to  be  considered  is,  will  the  proposed  bridge,  if 
erected  as  authorized  and  prescribed  by  the  law  of  the 
State,  so  unlawfully  obstruct  the  free  navigation  of  the 
Hudson  river  as  to  amount  to  a  public  nuisance,  and  a 
public  offence  against  the  United  States  1  I  admit,  in  this 
connection,  that  whatever  may  be  the  right  of  the  com¬ 
plainants  under  their  licenses,  the  same  right  of  free 
navigation  belongs,  or  may  belong,  to  the  whole  people 
of  the  United  States.  The  question  here  presented  neces¬ 
sarily  involves  the  consideration  of  a  supposed  conflict 
between  the  authority  and  laws  of  the  two  governments, 
State  and  National. 

Certain  points  of  doctrine  in  regard  to  repugnancy  and 
conflict,  are  deemed  to  be  too  well  settled  in  this  Court, 
to  require  that  anything  more  should  be  done  than  to 
state  them.  The  power  of  Congress  “  to  regulate  com¬ 
merce  with  foreign  nations,  and  among  the  several  states,” 
is  an  exclusive  power;  but  the  power  is  dormant  until 
Congress  legislates  in  execution  of  it.  A  measure 
adopted  under  State  authority,  and  under  an  acknowledged 
power,  which  may  affect  commerce  in  some  particular 
wherein  Congress  has  the  power  to  legislate  but  has  not 
done  so,  would  not  be  an  unconstitutional  act  on  the  part 
of  the  State.  To  make  repugnance  or  a  conflict  in  such 
a  case  there  must  be  something  more  than  the  mere  dele¬ 
gation  of  the  power  over  commerce  to  Congress;  there 
must  be  Congressional  legislation  covering  the  subject. 
(Gibbons  v.  Ogden,  9  Wheat.  R.  240,  and  Willson  v. 
Blackbird  Creek  Marsh  Co.,  8  Curtis  105.) 

There  is  no  direct  repugnance  to  the  constitutional  pro¬ 
vision  which  clothes  Congress  with  the  power  over  com¬ 
merce,  in  the  measure  which  the  legislation  of  the  State 
has  authorized  in  this  case.  If  this  legislation,  however, 


54 


is  so  in  conflict  with  any  act  of  Congress  passed  to  regu¬ 
late  commerce,  that  the  legislation  of  both  governments 
cannot  stand,  as  a  practical  thing,  but  one  or  the  other 
must  give  way,  then  that  of  the  State  must  yield.  This 
conflict  of  laws,  if  practically  developed  in  an  irrecon¬ 
cilable  conflict  of  measures,  or  of  rights,  under  such 
laws  respectively,  makes  the  State  legislation  inoperative 
under  the  provisions  of  the  Constitution. 

Now  the  complainants  claim  that  Congress  has  legis¬ 
lated  under  its  power  to  regulate  commerce,  in  the  Act 
which  provides  for  the  licensing  of  vessels  for  the  Coasting 
trade,  and  that  they  are  armed  with  the  authority  of  licen¬ 
ses  under  that  Act,  and  are  thus  entitled,  as  are  all  persons 
armed  with  the  same  authority,  by  the  express  legislation 
of  Congress,  to  the  free  navigation  of  the  Hudson.  They 
add,  that  that  right  of  free  navigation  extends  up  the 
river  to  Troy,  because  Congress  has  made  Troy  a  port  of 
delivery. 

Taking  the  right  then,  as  here  stated,  will  the  proposed 
bridge,  if  erected  as  authorized,  so  materially  obstruct 
the  navigation  of  the  rjver  that  the  reasonable  right  of 
the  complainants,  and  others,  to  the  free  navigation,  as 
claimed  to  be  secured  to  them  under  their  licenses,  can¬ 
not  be  enjoyed,  but  will  be  unreasonably  interrupted  and 
injured  by  the  eflect  of  the  bridge  ?  Is  there  anything 
in  the  allegations  and  proofs  before  the  Court  to  authorize 
it  so  to  pronounce  and  declare  1 

The  complainants  do  not,  as  I  understand  them,  go  the 
extravagant  length  of  maintaining  that  their  licenses  give 
them  an  absolute  and  unrestricted  right  to  enter  the 
waters  of  New  York  free  from  any  question,  impediment, 
hindrance  or  delay,  by  or  under  the  authority  of  the 
State  ;  or  to  sail  their  vessels  on  the  waters  of  the  Hudson 
river,  in  the  channels,  or  along  the  shores,  wherever  there 
was  water  enough  to  float  them  at  the  date  of  their  licen- 


65 


ses,  or  at  the  date  of  the  Act  under  which  the  licenses 
were  granted,  free  from  any  obstruction,  hindrance  or 
difficulty  of  any  kind,  however  slight,  created  by,  or 
under  the  authority,  of  the  State. 

It  is  more  than  three-quarters  of  a  century  since  the 
Act  for  granting  licenses  for  the  coasting  trade  was  passed, 
and  during  all  that  time  vessels  licensed  for  that  trade 
have  been  navigating  the  Hudson  river.  Within  that 
period  tire  State  has  done,  or  authorized,  a  great  many 
things  which  have  affected  the  navigation.  Wharves  and 
piers,  carried  far  into  the  river  from  its  original  shores, 
have  been  constructed  at  New  York,  and  Albany,  and 
various  other  places.  Nobody  has  ever  complained  of 
these,  and  they  are  not  now  complained  of.  Every  one 
of  these  constructions  is  an  encroachment,  to  a  greater  or 
less  extent,  on  the  free,  natural  flow  of  the  river,  and  on 
the  full  freedom  of  navigation  upon  it  in  its  natural  state. 
Ferries  are  established  across  the  river  at  various  places 
under  State  authority.  There  are  four  steam  ferry  boats 
in  almost  constant  motion  at  Albany.  And  every  ferry 
boat  on  the  river  is  in  some  degree  an  impediment  to  free 
navigation.  A  bridge  exists  at  Troy,  below  the  flow  of 
the  tide,  which  can  only  be  passed  by  a  narrow  draw.  A 
dam  exists  higher  up,  but  still  below  the  flow  of  the  tide, 
which  can  only  be  passed  by  locks.  All  these  are 
obstructions  or  impediments  to  free  navigation,  existing 
by  State  authority,  and  are  not  complained  of.  Through¬ 
out  the  United  States,  in  all  the  navigable  waters,  the  like 
obstructions  and  impediments  have  been  created  by  State 
authority,  and  seldom,  if  ever,  questioned.  The  State 
has  a  Quarantine  establishment,  standing  guard  perpetu¬ 
ally  over  the  entrance  into  its  waters,  and  there  foreign 
vessels,  and  vessels  of  the  United  States,  both  of  the  mili¬ 
tary  and  mercantile  marine,  are  arrested  and  detained  for 
hours,  days  or  weeks,  as  a  sanitary  measure,  at  the  plea- 


56 


sure  of  tlie  State,  and  solely  under  State  authority.  If 
Mr.  Frederick  W.  Coleman  should  come  along  with  his 
coasting  schooner,  the  Vintage,  from  Barnstable,  in  Massa¬ 
chusetts,  and  should  come  to  this  Quarantine  ground  with 
a  pestilence  on  board,  his  vessel  would  be  arrested  until 
he  could  get  permission  from  State  authority  to  pursue  his 
voyage  up  the  Hudson  river.  Here  is  a  liability  to  a 
more  serious  interruption  to  the  perfectly  free  use  of  the 
navigable  waters  of  the  State,  to  a  longer  delay,  and  to 
heavier  loss  and  damage,  than  any  ever  likely  to  arise 
from  any  bridge  over  the  Hudson.  But  nobody  doubts, 
the  complainants  do  not  doubt,  the  right  of  the  State  to 
interfere  thus  far,  and  in  this  manner,  with  the  rights  of 
free  navigation,  as  claimed  to  be  secured  by  the  legisla¬ 
tion  of  Congress,  under  the  power  to  regulate  commerce. 

It  cannot,  then,  be  claimed  by  the  complainants,  that 
the  rights  of  navigation  in  the  Hudson  river  as  secured 
to  them  by  the  legislation  of  Congress,  and  their  licenses, 
are  so  absolute,  that  the}1"  are  subject  to  no  obstruction, 
impediment,  delay,  or  restriction  whatever,  and  no  mat¬ 
ter  how  inconsiderable,  from  the  legislation  and  measures 
of  the  State.  The  legislation  of  Congress  is  paramount, 
and  nothing  in  State  legislation  which  directly  and  abso¬ 
lutely  contravenes  it,  can  stand.  But  much  of  the  legis¬ 
lation  of  both  governments  may  stand,  notwithstanding  a 
partial  interference.  The  power  to  regulate  commerce 
belongs  to  the  General  Government.  That  is  one  power. 
The  power  of  police,  under  which  quarantine  and  health 
laws  are  made,  and  the  power  to  make  roads  and  establish 
ferries  and  bridges,  belong  to  the  State.  These  are  dis¬ 
tinct  and  independent  powers.  They  belonged  to  the 
State  originally,  when  its  sovereignty  was  absolute,  and 
they  were  not  taken  away  by  the  Constitution.  If  they 
are,  in  a  certain  sense  and  degree,  subject  to  the  power 


67 


of  Congress  over  commerce,  yet  the  original  powers  remain, 
and  are  still  powers  of  sovereignty.  When  these  inde¬ 
pendent  powers  are  exercised  by  the  respective  govern¬ 
ments,  partial  interferences  and  collisions  are  liable  to 
arise  in  the  measures  they  may  authorise,  or  in  the  rights 
they  may  protect.  But  such  partial  interferences  and 
collisions  do  not  make  the  laws  of  the  respective  govern¬ 
ments  so  absolutely  incompatible  and  repugnant,  that  they 
cannot  stand  together.  Wherever  the  laws  of  both  can 
have  a  fair  and  reasonable  operation  and  effect,  both  must 
be  maintained.  Without  this  principle,  it  would  be  im¬ 
possible  to  maintain  our  complex  system,  impossible  to 
make  it  operate  in  harmony,  and  secure  the  immense 
advantages  which  our  daily  experience  shows  us  flow 
from  the  wise  and  beneficent  adjustment  of  the  powers 
of  government  in  our  State  and  National  organizations. 
It  has  been  the  fixed  policy  of  the  country  to  maintain 
the  principle  to  which  I  have  referred.  Congress  adopts 
the  pilot  laws  of  the  States,  even  while  the  power  of  the 
States  to  pass  such  laws  is  doubted.  Congress  passes  laws 
to  encourage  and  aid  in  the  full  execution  of  the  quaran¬ 
tine  and  health  laws  of  the  States,  though  these  laws 
materially  interfere  with  that  freedom  of  navigation  which 
is  supposed  to  be  secured  to  all  vessels  sailing  under  its 
authority.  (Ch.  J.  Marshall’s  opinion  in  Gibbons  vs. 
Ogden.)  Congress  adopts  the  roads  of  the  States  for  its 
post-roads,  and  for  its  military  roads,  though  the  power 
to  make  such  roads  for  itself  can  hardly  be  doubted. 

The  question  between  the  proposed  bridge  in  our  case, 
and  the  rights  of  free  navigation  supposed  to  be  secured 
by  the  authority  of  Congress,  must  stand  on  this  same 
principle  and  policy.  Will  the  bridge  be  such  an  obstruc¬ 
tion  that  the  law  of  Congress  in  reference  to  licenses,  giving 
it,  in  general  terms,  the  construction  which  the  complain¬ 
ants  attribute  to  it,  cannot  have  a  fair  and  reasonable  opera- 
8 


68 


tiun'?  Will  it  be  such  an  obstruction  that  the  rights  of 
the  complainants  to  the  free  navigation  of  the  river,  under 
licenses  supposed  to  be  intended  to  secure  them  from 
improper  State  interference,  cannot  be  fairly  and  reason¬ 
ably  enjoyed  ?  May  not  the  bridge  stand,  as  a  measure 
of  public  improvement  devised  by  the  State,  and  all  fair 
and  reasonable  rights  of  navigation  still  remain  to  the 
complainants  and  the  public,  substantially  as  claimed  by 
them  ? 

The  river  is  not  to  be  closed  by  the  bridge;  that  can¬ 
not  be  pretended.  The  bridge  is  to  be  adapted  to  the 
position  it  is  to  occupy,  with  special  reference  to  the  pre¬ 
serving  of  open  and  unobstructed  channels  under  and 
through  it,  for  "all  the  navigation  that  will  have  occasion 
to  use  them,  or  the  river  above.  Eight-tenths  of  all  that 
floats  there  will  pass  freely  under  the  bridge  at  all  stages 
of  water.  For  the  rest,  it  will  have  one  draw  of  180 
feet  in  width,  or  two  draws  of  110  feet  each.  It  requires 
no  proof,  it  admits  of  no  denial,  that  this  provision  is 
ample  for  the  passage  of  the  largest  vessels  navigating  the 
river.  It  is  a  plain  mathematical  fact.  The  “  Great 
Eastern  ”  could  pass  through  with  ease,  if  there  was  water 
enough  to  float  her.  It  is  not  a  question  whether  the 
passage  with  the  bridge  will  be  as  wide  and  ample  as  it  is 
without  it.  It  is  not  a  question  whether  there  may  not, 
at  times  at  least,  be  some  little  difficulty,  some  little  incon¬ 
venience,  some  little  detention,  some  little  hazard  even, 
in  passing  the  bridge.  Not  only  some  little  of  all  this, 
but  a  great  deal  of  it  all,  is  incident  to  the  very  nature 
of  navigation,  as  well  on  rivers,  as  in  bays  and  harbors3 
and  on  the  open  sea. 

It  seems  clear  that  a  vessel  cannot  move  between 
Albany  and  Troy  without  encountering  inconveniences 
quite  as  great  as  any  to  be  met  with  in  passing  the  pro- 


69 


posed  bridge.  Tows,  as  they  are  called,  some  acres  of 
craft  spread  broad  and  long  over  the  river,  and  dragging 
their  slow  length  along,  often  to  the  great  annoyance  of 
other  vessels  and  interests  of  navigation,  may  not  be  able 
to  pass  the  bridge  without  some  temporary  diminution 
and  lowering  of  their  huge  proportions  and  pretensions. 
If  they  cannot  pass  in  grand  column,  they  may  easily 
break  ranks  a  little,  and  so  pass.  They  have  to  do  this  in 
other  parts  of  the  river.  Grand  armies  have  to  do  the 
like  in  all  their  marches.  The  river  was  not  made  for 
tows  alone,  of  the  Leviathan  order.  Such  things  were 
not  dreamed  of  when  the  license  law  of  Congress  was 
passed.  They  are  entitled  to  all  due  consideration,  but 
not  to  any  monopoly  of  rights  or  accommodation  on  the 
river. 

The  true  question  is,  will  the  bridge,  instead  of  closing 
the  highway  of  the  river,  leave  a  liberal  and  ample  gate¬ 
way  for  every  thing  that  floats  there  1  If  it  will,  then 
we  say  there  is  no  real  collision,  no  incompatibility 
between  the  bridge,  as  a  beneficent  measure  of  public 
improvement  under  the  authority  of  the  State,  and  the 
rights  of  free  navigation,  as  supposed  to  be  secured  under 
the  authority  of  Congress.  The  complainants  and  the  pub¬ 
lic  may  still  navigate  the  highway  of  the  river  freely, 
while  a  noble  highway  athwart  the  river,  equally 
demaded  for  the  use  of  the  public,  is  also  secured.  To 
complain,  or  talk  of  such  a  measure  as  a  public  nuisance, 
seems  to  me  to  pervert  language,  and  heap  contempt  on 
truth  and  reason. 

What  is  “  free  ”  navigation  1  We  have  seen  that  those 
who  claim  free  navigation,  are  still  forced  to  submit  to 
some  abatement  of  the  idea  of  an  absolute  and  unre- 
stricted  scope  and  verge  for  the  sailing  of  their  craft. 
Freedom  of  navigation  is  a  thing  not  difficult  to  be  under- 


60 


stood.  It  is  perfectly  well  defined  in  practice  on  Euro¬ 
pean  rivers,  and  tlie  Publicists  are  not  silent  on  the  sub¬ 
ject. 

Vattel,  when  treating  of  the  common  right  of  naviga¬ 
ting  public  rivers  under  the  regulations  of  the  sovereign, 
says  : 

“  This  right  necessarily  supposes  that  the  river  shall 
remain  free  and  navigable ,  and  therefore  excludes  every 
work  that  will  entirely  interrupt  its  navigation.”  (Vat¬ 
tel,  Chitty’s  7  Am.’ed.,  pp.  123-4  ;  B.  I.  sec.  273.) 

The  doctrine  is  that  a  river  remains  free  and  naviga¬ 
ble,  so  long  as  its  navigation  is  not  entirely  interrupted. 
Wharves  and  piers,  and  bridges  with  draws,  do  not 
entirely  obstruct  navigation,  but  leave  the  navigation  open, 
and  therefore  free,  in  respect  to  physical  obstructions. 

When  the  navigation  is  thus  left  open,  and  is  not  em¬ 
barrassed  by  oppressive  duties  and  regulations,  then  it  is 
free  in  the  accepted  European  sense,  and  according  to  the 
doctrine  of  the  Publicists.  (1  Kent’s  Com.,  p.  35,  2d  ed.) 

In  1815,  the  European  Powers,  by  the  treaty  of  Paris, 
established  the  freedom  of  navigation  on  the  Rhine,  and 
made  arrangements  for  extending  the  principle  to  other 
European  rivers,  which,  like  the  Rhine,  separated  or 
traversed  the  territories  of  several  States.  The  movement 
was  made  upon  a  Memoir  of  Baron  William  Von  Hum¬ 
boldt,  the  Plenipotentiary  of  Prussia.  A  reference  to 
the  proceedings  and  papers  will  show  that  the  freedom  of 
navigation  sought  to  be  achieved,  was  the  exemption  from 
the  various  and  vexatious  commercial  and  custom-house 
regulations  and  impositions  of  the  several  riparian  States, 
which  had  always  greatly  impeded  navigation,  and  some¬ 
times  had  shut  up  a  river  entirely.  In  the  final  act  of 
the  Congress  of  Vienna,  it  was  declared  that  the  naviga¬ 
tion  of  these  rivers  should  be  “  entirely  free  ”  (“  entiere- 


61 


merit  Hire  ”)  and  could  not,  in  respect  to  commerce,  be 
interdicted  (“  inter dite  ”)  to  any  body.  (Wheat.  Hist. 
Law  of  Nations,  pp.  498 — 504.) 

Minute  provisions  were  made  for  the  regulation  of 
commerce,  and  the  imposition  of  duties,  by  laws  of  com¬ 
mon  obligation  among  the  riparian  States,  leaving  to  these 
States  respectively  their  rights  of  sovereignty  in  all  other 
respects.  No  stipulations  were  made,  or  suggested,  to 
restrain  the  several  riparian  States  from  physical  ob¬ 
structions  to  the  navigation  by  means  of  bridges,  or  other 
necessary  erections.  Bridges  then  existed,  and  more  exist 
now,  over  these  rivers — many  of  them  to  be  passed  only 
by  means  of  draws.  No  necessity  was  felt  for  any  special 
provision  on  this. subject.  Besides  that  no  apprehension 
could  be  entertained  that  any  riparian  State  would  wholly 
shut  up  the  navigation  and  commerce  of  its  own  river 
by  physical  obstructions — which  must  always  be  an  act 
of  suicidal  folly — the  law  of  nations  provided  for  the 
case,  if  it  should  ever  occur.  The  impediment  to  navi¬ 
gation  which  constituted  the  whole  danger  and  the  whole 
evil,  was  the  various  and  conflicting  regulations,  duties, 
and  exactions  which  the  several  riparian  States  were  at 
liberty  to,  and  did,  impose  on  the  commerce  and  naviga¬ 
tion  of  the  rivers  which  were  common  to  these  States. 
When  commerce  and  navigation  were  regulated  by  a  law 
of  common  obligation  to  them  all,  then  the  navigation 
was  “  entirely  free.”  It  was  assumed  that  the  navigation 
would  remain  open,  because,  by  the  law  of  nations,  no 
State  could  establish  a  work,  be  it  a  bridge  or  any  other, 
_  which,  in  the  language  of  Vattel,  would  “  entirely  inter¬ 
rupt  navigation.”  Every  riparian  State  would  take  care 
to  leave  the  navigation  open  at  least  to  its  own  citizens, 
and  just  as  it  was  open  to  them,  would  it  be  open  to  the 
citizens  of  the  other  riparian  States.  A  navigation  thus 


62 


open,  and  at  the  same  time  relieved  from  the  impositions 
and  exactions  of  particular  States,  and  placed  under  a 
common  law  of  commercial  regulation,  was  an  entirely 
“  free 55  navigation  in  public  law,  and  in  common  sense. 

It  is  manifest  that  what  was  thus  accomplished — after 
all,  not  in  the  most  perfect  manner — by  the  powers  of 
Europe  in  1815,  in  establishing  freedom  of  navigation  on 
their  rivers,  had  been  done  in  the  most  perfect  and  com¬ 
plete  way,  by  the  Constitution  of  the  United  States  in 
1187,  in  establishing  freedom  of  navigation  on  all  the 
navigable  waters  of  the  United  States. 

Before  the  Constitution,  the  same  evils  of  separate  and 
rival  commercial  regulations  among  the  several  States  in 
this  country  had  existed,  as  afflicted  navigation  and  com- 
merce  on  the  European  rivers,  and  it  was  exactly  these 
evils  that  were  sought  to  be,  and  were,  effectually  cor¬ 
rected  and  remedied  by  the  provisions  of  the  constitution. 
When  the  separate  States  had  been  forbidden  to  lay  duties 
on  imports  or  exports,  or  duties  of  tonnage,  and  the  gene¬ 
ral  regulation  of  commerce  was  confided  to  a  common 
government,  which  all  the  States  were  bound  to  obey,  and 
when,  in  addition  to  all  this,  it  was  provided  that  no  State 
could  give  privileges  and  immunities  to  its  own  citizens 
to  which  the  citizens  of  other  States  were  not  also  enti¬ 
tled  ;  when  all  this  was  done,  freedom  of  navigation  on 
all  the  navigable  waters  of  the  United  States,  was  effectu¬ 
ally  and  abundantly  provided  for.  If,  as  the  complain¬ 
ants  here  maintain,  it  belonged  to  Congress  as  a  part  of 
the  power  to  regulate  commerce,  to'  provide  by  legislation 
against  improper  physical  obstructions  to  navigation  by 
the  erection  of  wharves,  piers,  or  bridges,  under  State 
authority  or  otherwise,  and  if  Congress,  as  they  maintain, 
has  made  that  provision  by  its  legislation  in  regard  to 
licenses  for  the  coasting  trade,  still  the  question  remains, 
in  respect  to  erections,  made  under  State  authority,  in  or 


63 


over  a  navigable  river,  and  which  produce  physical  irn. 
pediments  to  the  navigation — when  do  they,  and  when  do 
they  not,  leave  the  navigation  open  and  free,  in  a  proper 
and  just  legal  signification  1  I  know  of  no  legal  definition 
which  the  Court  can  apply  to  the  subject  but  that  which 
is  derived  from  the  law  and  the  practice  of  nations. 
There  can  be  no  other  safe  rule.  The  law  of  free  naviga¬ 
tion  in  regard  to  physical  obstructions  in  the  rivers  of  the 
United  States,  created  under  State  authority,  still  subject 
as  such  rivers  are,  confessedly,  to  the  general  sovereignty 
and  jurisdiction  of  the  several  States  within  which  they 
run,  cannot  be  any  other  than  that  of  the  established  law 
of  nations.  No  other  rule  is  adapted  to  the  case.  The 
Constitution  provides  no  new  rule  on  the  subject ;  Con¬ 
gress  has  prescribed  none  ;  and  surely  this  Court  cannot 
make  one. 

The  rule  of  the  law  of  nations,  in  regard  to  physical 
obstructions,  as  I  understand  it,  is,  that  if  the  navigation 
be  left  open  to  all  who  are  entitled  to  use  it,  as  it  is  to  the 
citizens  of  the  State  making  the  erections,  the  navigation 
is  free.  If,  for  exanrple,  a  low  bridge  is  erected  over  a 
river  by  the  sovereign  entitled  to  make  the  erection,  and 
the  navigation  is  left  fairly  open  by  means  of  a  draw,  the 
navigation  is  free  from  any  unlawful  physical  obstruction. 

What  constitutes  then  the  full  freedom  of  navigation  of 
a  river  in  this  country,  as  all  over  the  world,  is,  1st,  such 
freedom  from  physical  obstruction  as  shall  leave  the  navi¬ 
gation  fairly  open — as  by  a  proper  draw  in  a  bridge  ;  and 
next,  freedom  from  such  special  legislation,  exactions,  im¬ 
positions  and  regulations  as  separate  riparian  States  might 
impose,  and  the  subjection  of  the  commerce  and  navigation 
to  a  common  law  of  regulation,  which  all  are  bound  to 
observe,  so  that  all  who  are  entitled  to  use  the  highway 
of  the  river  enjoy  equal  rights  and  equal  privileges  in  the 
navigation.  This  is  what  I  understand  constitutes  in  full, 


64 


in  all  its  length  and  breadth,  that  free  navigation  of  the 
Hudson  to  which  the  complainants,  and  the  public,  are 
entitled. 

It  is  the  physical  obstruction  to  the  navigation  which  is 
complained  of  in  this  case.  And  the  position  I  take  on 
that  point,  is  that,  inasmuch  as  the  proposed  bridge  will 
be  constructed  with  a  draw,  or  draws,  which  will  leave 
the  navigation  open  to  all  who  are  entitled  to  use  it,  the 
navigation  is  perfectly  “  free,”  in  the  legal  acceptation  of 
the  term  as  applicable  to  all  public  rivers,  and  free,  too, 

•  in  the  whole  common  sense  of  the  subject. 

It  is  sufficient  if  the  navigation  is  left  u  open;”  and  no¬ 
body  has  a  right  to  complain  of  any  necessary  restrictions 
which  may  attend  this  new  condition  of  the  navigation. 
Good  faith  requires  that  it  should  be  left  fairly  open — a 
condition  abundantly  secured  by  the  interest  which  the 
State  itself  has  in  a  free  navigation.  In  this  case,  there 
cannot  be  a  doubt  that  the  navigation  is  to  be  left,  not 
only  open,  but  fairly  and  liberally  open,  and  in  that  sense, 
the  only  sense  in  which  the  complainants  or  the  public 
have  a  right  to  demand  it,  entirely  free. 

I  am  glad  to  believe  that  the  view  I  have  now  pre¬ 
sented,  of  what  free  navigation  is,  in  respect  to  physical 
obstructions  authorized  by  State  authority,  is  in  per¬ 
fect  harmony  with  the  opinions  and  decisions  of  the  Courts 
of  the  United  States,  in  all  cases  where  complaints  have 
been  made  before  them  against  bridges  over  public  rivers. 

In  the  Cuyahoga  Bridge  Case,  (3  McLean,  R.  226,)  Mr. 
Justice  McLean  said :  “A  dam  may  be  thrown  over  the 
river  provided  a  lock  is  so  constructed  as  to  permit  boats 
to  pass  with  little  or  no  delay,  and  without  charge.”  He 
said  also  in  the  same  case  :  “A  draw-bridge  across  a  navi¬ 
gable  river  is  not  an  obstruction.” 

The  decision  of  the  same  learned  judge  in  the  Rock 
Island  Bridge  case,  so  far  as  he  considered  the  question  ! 


66 


of  obstruction,  and  the  open  navigation  furnished  by  the 
draw,  was  in  accordance  with  his  opinion  in  the  case  just 
referred  to. 

In  the  Wheeling  Bridge  case,  the  majority  of  the  Court 
held  the  bridge  to  be  an  unlawful  obstruction,  because  it 
was  an  absolute  impediment,  because,  in  fact,  in  their 
judgment,  it  shut  up  the  river  at  that  point,  to  a  certain 
class  of  vessels  accustomed  to  use  it — the  class  of  steam¬ 
ers  with  tall  chimneys.  It  was  not  provided  with  a  draw. 
And  Mr.  Justice  McLean,  who  delivered  the  opinion  of 
the  Court,  said  :  “  If  the  obstruction  be  slight,  as  a  draw 
in  a  bridge,  which  would  be  safe  and  convenient  for  the 
passage  of  vessels,  it  would  not  be  regarded  as  a  nuisance, 
where  proper  attention  is  given  to  raise  the  draw  on  the 
approach  of  vessels.”  In  the  dissenting  opinion  in  this 
case,  of  his  Hon.  the  Chief  Justice,  it  was  wisely  said,  quite 
in  accordance  with  the  opinion  just  quoted :  u  Bridges 
have  been  erected  over  many  navigable  rivers,  and  built 
so  near  the  water,  that  vessels  can  pass  only  through  a 
draw.  Such  bridges  are  unquestionably  obstructions,  and 
impede  navigation.  For  where  the  vessels  are  propelled 
by  sails,  and  the  wind  is  unfavorable,  they  are  often 
detained  not  only  for  hours,  but  for  days.  The  Courts  of 
the  United  States  have  never  exercised  jurisdiction  over 
any  of  these  obstructions,  nor  declared  them  to  be  nui¬ 
sances.”  It  is  only  necessary  to  add  in  reference  to  this 
case,  that  the  decree  for  abatement  which  had  originally 
been  made,  was  subsequently  modified  by  the  Court  so  as 
to  authorize  a  draw  to  be  constructed,  such  as,  in  the 
opinion  of  an  engineer  to  whom  the  matter  had  been 
referred,  would  fairly  open  the  navigation  to  the  class  of 
vessels  to  which  otherwise  the  bridge  was  held  to  oppose 
an  absolute  obstruction.  Such  a  draw  was  declared  to  be 
satisfactory,  though  vessels  would  be  obliged  to  leave  the 
9 


66 


principal  and  accustomed  channel,  and  run  an  increased 
distance  by  another,  to  reach  the  draw. 

These  cases  I  think  show  a  sufficient  harmony  with  the 
doctrine  which  I  have  brought  to  the  notice  of  the  Court, 
with  regard  to  physical  obstructions  under  State  authority 
in  a  navigable  river.  By  this  doctrine,  when,  as  in  this 
case,  the  Court  sees  that  the  State  has  made  careful  pro¬ 
vision,  by  means  of  a  draw  in  its  proposed  bridge,  to  keep 
the  navigation  fairly  open,  I  think  it  is  bound  to  assume 
that  the  draw  will  be  sufficient  for  that  purpose  until  at 
least  the  contrary  is  made  to  appear  by  practical  demon¬ 
stration  after  the  erection  is  made.  This  I  humbly  think 
is  the  only  convenient,  the  only  safe,  and  the  only  legal 
course  for  the  Court.  But,  at  any  rate,  if  the  Court  will 
entertain  the  question,  and  hear  proofs  in  regard  to  the 
sufficiency  of  the  draw  before  the  erection  is  made,  on  a 
Bill  in  Equity  by  a  private  party,  at  least  it  should  insist 
that  the  case  against  the  sufficiency  of  the  draw  shall  be 
made  out  with  a  certainty  which  shalf  leave  nothing  to 
doubt  about. 

The  proposed  bridge  with  a  draw,  authorized  by  the 
State,  is  prima  facie  a  lawful  bridge.  It  is  not  an 
obstruction  by  the  test  of  the  only  rule  of  law  which  can 
be  applied  to  the  subject ;  it  leaves  the  navigation  fairly 
open  and  free.  The  opening  will  be  ample,  and  the 
arrangements  ample,  to  admit  the  easy  passage  of  any 
vessel  navigating  the  river.  There  will  be  a  very  wide 
draw,  and  comparatively  a  very  narrow  vessel  to  pass  it. 
No  testimony  could  impeach  that  broad  fact.  And 
with  this  fact  alone  I  insist  that  the  bridge  is  a  lawful 
one.  If  delays  and  difficulties  may  occur,  still  they  can¬ 
not  impeach  the  lawfulness  of  the  bridge,  unless  they  are 
shown  to  be  such  as  must  amount  to  a  practical  impedi¬ 
ment  to  the  passing  of  the  draw,  so  great  that  parties 


67 


engaged  in  the  navigation  would  be  likely  to  abandon  it 
as  no  longer  free.  No  such  difficulties  or  delays  have 
been  shown  ;  none  such  can  be  shown  in  the  nature  of 
the  case.  The  navigation  will  be  fairly  open,  and  there¬ 
fore  free — free  in  the  sense  of  international  law — free  in 
any  sense  of  the  license  law  of  Congress,  which  can  be 
fairly  attributed  to  it — free  in  the  sense  of  the  licenses 
granted  under  that  law,  even  when  taken,  after  the  con¬ 
struction  of  the  complainants,  as  a  warrant  of  title  in  all 
who  use  them  to  the  free  navigation  of  the  river. 


VII. 


But  I  come  now  to  look  at  the  case  in  another  view. 
I  hope  I  have  shown  that  the  proposed  bridge  will  not  be 
an  unlawful  erection  and  a  nuisance,  even  if  it  be  admit¬ 
ted  that  Congress,  in  the  shape  and  guise  of  a  regulation 
of  commerce  in  respect  to  the  coasting  trade,  has  actually 
passed  an  Act,  the  object  of  which  was  to  prevent  and  pro¬ 
hibit  improper  and  undue  obstructions  by  bridges,  or 
other  erections,  in  navigable  rivers,  and  to  control  State 
legislation  in  relation  to  such  erections.  But  I  must  now 
deny  that  Congress  passed  the  Act  for  licensing  vessels  for 
the  coasting  trade,  or  that  it  has  ever  passed  any  Act,  with 
the  object  and  purpose  thus  attributed  to  it.  I  deny  that 
there  is  any  legislation  of  Congress  of  any  kind,  that  pur¬ 
ports  to  have  any  such  object  in  view,  or  that  can  bear 
any  such  interpretation  without  an  utter  perversion  of  all 
the  canons  of  interpretation  usually  applied  to  statutes. 

In  the  Wheeling  Bridge  Case,  certain  general  legisla¬ 
tion  of  Congress  for  the  regulation  of  commerce  on  all 


68 


the  navigable  waters  of  the  United  States,  in  “  licensing 
vessels,  establishing  ports  of  entry,  imposing  duties  upon 
masters  and  other  officers  of  boats,  &c.,”  and  also  the  sanc¬ 
tion  by  Congress  of  the  compact  between  Virginia  and 
Kentucky,  for  the  free  navigation  of  the  Ohio,  were  re¬ 
ferred  to  by  the  Court  as  sufficient  to  warrant  the  Court 
in  declaring  the  bridge  as  built,  to  be  an  obstruction,  and 
a  public  nuisance. 

But  the  Court  can  only  administer  the  laws  of  the 
United  States,  not  make  them,  or  supply  any  defects  in 
them.  The  question  is,  has  Congress  declared  a  bridge 
over  a  public  river,  or  any  erection  of  the  sort,  producing 
an  impediment  to  navigation,  to  be  an  obstruction,  and  a 
public  nuisance.  If  it  has,  the  Court  may  administer  that 
law  by  so  pronouncing;  if  it  has  not,  there  is  no  law  on 
the  subject  for  the  Court  to  administer. 

Nothing,  it  seems  to  me,  can  be  clearer  than  that  Con¬ 
gress  has  adopted  no  system  of  legislation,  and  no  Act  of 
legislation,  to  prohibit  or  prevent  obstructions  in  naviga¬ 
ble  waters.  It  has  adopted  no  legislation  which  indicates 
any  such  object.  No  Act  could  have  ever  have  been 
passed  for  such  a  purpose  without  eliciting  debate,  or 
without  arousing  attention,  and,  I  may  add,  without  the 
strongest  opposition.  There  cannot  be  a  doubt  that  the 
States  are  perfectly  competent,  and  always  perfectly  ready, 
to  prevent  and  punish  any  unauthorized  obstructions  in 
the  navigable  waters  within  their  respective  limits.  As 
for  the  States  themselves  obstructing  their  own  navigable 
waters,  in  any  way  to  be  a  fit  subject  of  complaint  by 
their  own  citizens,  by  other  States,  or  the  citizens  of  other 
States,  they  no  more  need  the  guardianship  of  Congress, 
or  of  the  Courts  of  the  United  States,  to  prevent  such 
mischief,  than  they  do  to  restrain  them  from  breaking  up 
their  roads  and  railways,  and  filling  up  their  canals,  or 
setting  fire  to  their  own  capitals,  or  burning  up  their  own 


69 


commercial  cities.  If  Congress  had  ever  legislated  on 
such  a  subject  as  this,  everybody  would  know  it;  the 
legislation  would  be  plain  and  palpable,  and  the  Courts 
would  not  have  been  left  to  grope  in  the  dark  after  the 

law. 

The  laws  passed  by  Congress  for  the  regulation  of  com¬ 
merce  are  in  no  sense  laws  to  prohibit  or  prevent  obstruc¬ 
tions  to  navigable  waters.  They  do  not  express,  or  indi¬ 
cate,  any  such  purpose,  and  they  are,  in  no  particular  or 
degree,  adapted  to  meet  and  cover  such  an  object.  They 
are  general  regulations,  attending  vessels  wherever  they 
go  on  the  navigable  waters  of  the  United  States,  and  into 
whatever  ports  they  enter. 

A  license  for  the  coasting  trade  is  an  authority  to  a 
vessel  to  visit  any  waters  of  the  United  States  which  it 
may  find  open  and  navigable,  and  any  port  of  entry  or 
delivery,  or  any  port  not  one  of  entry  or  delivery,  which 
it  may  find  accessible.  But  it  is  no  pledge  to  the  owner 
or  navigator  of  the  vessel,  to  go  before  him  to  clear  away 
any  obstructions  he  may  meet  with.  The  act  for  grant¬ 
ing  licenses  is  not  an  act  to  prohibit  or  prevent  obstruc¬ 
tions,  or  to  declare  an  obstruction  a  public  nuisance,  and 
make  provisions  for  the  proper  abatement  and  punishment 
of  such  a  public  offence. 

It  seems  to  me  there  was  still  less  in  the  compact 
between  Virginia  and  Kentucky,  and  the  sanction  of  it 
by  Congress  (if  it  was  so  sanctioned,)  which  could  be 
construed,  or  tortured  even,  into  a  law  of  Congress  to 
prohibit  obstructions  in  the  Ohio,  and  declare  them  a 
public  nuisance. 

Under  the  Constitution,  all  the  navigable  rivers  of  the 
United  States,  those  in  the  west  as  well  as  others,  are  free 
rivers  to  all  the  citizens  of  the  United  States.  The  com¬ 
pact  in  the  Ordinance  of  1787,  which  was  before  the  Con- 


70 


stitution,  and  the  compact  between  Virginia  and  Ken¬ 
tucky,  do  not  make  the  western  rivers  more  free  than  the 
Constitution  makes  them,  by  various  special  provisions  in 
relation  to  duties,  navigation  and  commerce,  and  by  de¬ 
claring  that  the  privileges  and  immunities  of  the  citizens 
of  each  State  shall  be  common  to  the  citizens  of  all  the 
States.  All  highways,  whether  of  water  or  on  land,  which 
are  common  to  the  public  of  a  State,  are  common  to  the 
public  of  the  United  States.  The  easement  of  a  naviga¬ 
ble  river  is  for  the  use  and  enjoyment  of  the  whole  peo¬ 
ple.  The  whole  design  of  the  compacts  referred  to  was 
to  secure  this  very  advantage,  which  is  now  so  effectually 
secured  everywhere  by  the  Constitution.  The  whole  ob¬ 
ject  was,  not  to  prevent  physical  obstructions  in  a  river 
by  the  authority  of  a  State,  which  no  State  could  make 
or  authorize  without  doing  itself  and  its  own  citizens 
more  harm  than  anybody  else,  but  that  the  citizens  of 
other  States  should  be  put  on  an  exact  equality  with  the 
citizens  of  the  State  within  which  a  river  might  run,  in 
regard  to  the  use  and  enjoyment  of  the  easement  of  such 
river.  (Opinion  of  Ch.  J.  Taney  in  Wheeling  Bridge 
case,  19  Curtis,  p.  649.)  The  Constitution  now  secures 
this  object  perfectly.  No  State  within  which  a  navigable 
river  runs,  can  impose  any  burthens,  any  disabilities,  any 
restrictions  or  conditions  upon  the  vessels  or  citizens  of 
other  states  in  using  the  easement  of  that  river,  that  are 
not  equally  imposed  upon  the  vessels  and  citizens  of  that 
State.  Any  State  legislation  in  violation  of  this  rule, 
would  be  repugnant  to  the  Constitution,  and  the  remedy 
and  correction  could  be  easily  applied. 

All  the  regulations  of  commerce  by  Congress  are  framed 
with  a  steady  regard  to  exactly  this  state  of  things.  They 
are  general  rules,  and  generally  of  universal  application. 
They  secure  the  perfect  equality  of  all  vessels,  and  of  all 


71 


citizens  of  whatsoever  States,  on  the  navigable  rivers  of 
every  State.  A  coasting  license  secures  exactly  this 
equality,  and  that  is  all  it  secures.  It  certifies  to  its  pos¬ 
sessor,  if  a  citizen  of  another  State,  a  perfect  equality 
of  rights  in  the  navigation  of  any  river,  which  that  river 
affords,  under  the  sovereignty  and  jurisdiction  of  the 
State  in  which  it  runs,  to  the  citizens  of  that  State.  Be¬ 
yond  that  it  has  no  meaning,  and  no  force,  in  respect  to 
freedom  of  navigation.  Congress  has  been  content  thus 
far,  and  I  believe  it  will  always  be  content,  to  leave  the 
sovereignty  and  jurisdiction  of  the  several  States,  and  the 
general  police  of  their  own  rivers,  in  regard  to  obstruc¬ 
tions  therein,  untouched  and  unrestricted.  And  to  con¬ 
strue  the  Act  providing  for  coasting  licenses,  or  Acts  estab¬ 
lishing  ports  of  entry  or  delivery,  as  laws  assuming  Fede¬ 
ral  jurisdiction  over  all  navigable  rivers,  and  as  enact¬ 
ments  to  prohibit  obstructions  and  declare  them  a  public 
nuisance;  this  I  must  hold  to  be  a  perversion  of  the  plain 
intent  and  meaning  of  statute  law,  such  as  has  no  parallel 
with  which  I  am  acquainted. 

I  do  not. see  why  the  decision  in  the  case  of  the  Black¬ 
bird  Creek  Marsh  Company,  does  not  entirely  cover  the 
position  that  Congress  has  passed  no  law  the  object  of 
which  has  been  to  control  State  legislation  in  regard  to 
bridges  and  other  erections  in  navigable  waters.  There  a 
close  dam  had  been  made  across  a  navigable  creek  by 
State  authority.  And  in  a  suit  which  involved  the  con¬ 
sideration  of  all  the  authority  that  could  be  given  to  a 
license  for  the  Coasting  trade,  the  Court  held  that  Con¬ 
gress  had  not  legislated  in  a  way  to  control  the  State  in 
this  act  of  sovereign  power. 


72 


yiii. 

I  have  one  other  view  of  this  case  to  present  to  the 
Court.  I  have  considered  the  case  on  the  assumption 
that  Congress  has  legislated  in  a  manner,  and  with  the 
intent,  to  control  State  legislation  on  the  subject  of  erec¬ 
tions  in.  or  over,  the  navigable  waters  of  the  United 
States.  I  have  next  shown,  or  endeavored  to  show,  that 
Congress  has  not  legislated  with  any  such  intent,  or  to 
any  such  effect.  I  come  now,  finally,  to  a  question  which  lies 
entirely  back  of  these,  and  of  all  other  questions  in  the 
case — a  question  fairly  arising  in  the  case,  one  which  it  is 
quite  time  this  Court  should  consider  and  decide;  and 
the  decision  of  which,  in  accordance  with  the  view  which 
I  entertain  of  it,  would  not  only  dispose  of  the  whole 
issue  between  these  parties,  whatever  might  be  the  opinion 
of  the  Court  on  the  other  points  raised  and  discussed  in 
the  suit,  but  would  settle  and  quiet  forever  the  whole 
disturbing  subject,  now  so  fruitful  of  litigation,  of  a  sup¬ 
posed  conflict  between  the  National  and  State  governments 
in  regard  to  an  important  branch  of  sovereignty  and  juris¬ 
diction  over  the  waters  of  the  United  States. 

The  question  which  I  have  to  present  and  discuss,  is 
this  :  Has  Congress,  under  the  power  “  to  regulate  com¬ 
merce  with  foreign  nations,  and  among  the  several  States,” 
authority  to  pass  laws  to  prohibit,  or  to  remove,  what  it 
may  deem  obstructions  to  navigation,  in  the  navigable 
waters  of  the  United  States,  by  erections  therein,  under 
State  authority,  exercised  within  the  territorial  limits  of 
the  States  respectively;  or  to  prescribe  terms  and  con¬ 
ditions  on  which  such  erections  may  be  made,  or  to  regu¬ 
late  the  same;  and  by  such  Congressional  legislation  to 
control  or  restrict  State  legislation  on  the  subject. 

In  other  words,  the  question  is,  may  the  National 
Government,  by  its  legislation  under  the  commercial 


73 


power,  oust  the  States  of  their  sovereignty  and  jurisdic¬ 
tion  over  the  navigable  waters  within  their  limits  respec¬ 
tively,  and  itself  assume  jurisdiction  so  far  as  to  command 
exclusively,  in  and  over  the  same,  and  over  the  soil  under 
the  waters,  in  whatsoever  may  concern  or  affect  the  ease¬ 
ment  or  freedom  of  navigation  therein,  due  to  the  public; 
exercising  all  the  powers  of  sovereignty  over  all  the  navi¬ 
gable  waters  of  the  United  States,  and  over  the  land 
under  these  waters,  which  any  sovereign  can  exercise 
over  the  navigable  waters,  and  the  land  under  them,  with¬ 
in  his  own  dominions  1 

I  am  perfectly  aware  that  the  power  of  Congress,  which 
I  here  propose  to  dispute,  has  generally  been  assumed 
and  taken  for  granted,  in  the  Courts  of  the  United  States, 
without  question  or  discussion.  It  has,  however,  only 
been  assumed  in  the  dicta  of  the  Courts  in  delivering 
opinions.  No  case,  so  far  as  I  am  aware,  can  be  deemed 
to  have  been  made  to  turn  or  stand  on  this  assumed  power, 
possibly  with  the  exception  of  the  Wheeling  Bridge  Case  : 
and  there  the  question  was  not  raised  and  discussed 
at  the  bar,  or  considered  and  decided  by  the  Court.  The 
power  was  merely  assumed,  and  thus  alluded  to  in  argu¬ 
ment.  I  hope,  under  all  the  circumstances,  and  consider¬ 
ing  the  immense  importance  of  the  question,  the  Court 
will  not  think  we  are  too  late  in  raising  that  question 
now,  and  asking  for  a  solemn  decision  upon  it. 

All  navigable  waters  within  the  State,  such  as  the  com¬ 
mon  law  calls  navigable,  are  a  part  of  the  domain  of  the 
States  in  which  they  lie.  A  State  owns  the  soil  and  bed 
of  its  navigable  waters  as  far  as  the  tide  flows.  Its  juris¬ 
diction  over  them  is  that  of  a  sovereign.  Its  civil  power 
over  them  is  that  of  a  sovereign.  Navigable  waters, 
within  the  dominions  of  a  sovereign,  are  the  property  of 
the  sovereign  ;  the  public,  however,  under  the  sovereign, 
has  a  right  to  the  easement  upon  them  for  navigation. 

10 


74 


But  the  sovereign  may  make  grants  therein,  interfering 
in  some  measure,  with  the  navigation, — as  for  fisheries 
and  the  like.  The  sovereign  may  even  close  the  naviga¬ 
tion  for  strong  reasons  of  State  ;  as  for  sanitary  purposes, 
or  where  public  policy  demands  it.  The  case  of  the 
Blackbird  Creek  Marsh  Company  is  an  example.  The 
right  of  the  public  to  navigate  a  navigable  river,  is  per¬ 
fect  as  against  all  private  and  unauthorized  obstructions. 
But  the  sovereign  may,  for  reasons  of  State,  create  impedi¬ 
ments  to  the  navigation,  and  no  subject  or  citizen  has  a 
right  to  complain  of  it,  or  can  bring  any  action  for  injury 
to  the  rights  of  navigation,  or  injuries  to  property  affected 
thereby.  It  is  presumed  the  sovereign  has  good  reason 
for  the  measures  he  may  adopt,  and  if  remote  incidental 
damages  follow  from  them,  the  citizen  has  no  remedy  but 
by  petition  to  the  sovereign.  If  the  sovereign  takes  away 
his  property  by  any  public  act,  he  must  make  compensa¬ 
tion  for  it.  These  are  general  and  familiar  principles 
which  need  only  to  be  stated  to  the  Court,  to  receive  its 
full  recognition. 

All  this  sovereignty  and  right  belonged  to  every  State 
in  reference  to  its  navigable  waters,  before  the  Constitu¬ 
tion.  The  sovereignty  was  not  taken  away  by  any  express 
provision  in  the  Constitution,  and  transferred  to  the  Na¬ 
tional  Government.  That  Government  is  not  declared  to 
be  the  sovereign  of  any  part  of  the  proper  domain  of  a 
State,. whether  it  is  land  or  water,  or  land  under  water. 

It  is  true,  Congress  is  clothed  with  power  to  regulate 
commerce,  and  it  becomes  a  material  question,  how  far 
Congress,  by  its  legislation  under  this  power,  may  control 
State  legislation  in  the  exercise  of  that  sovereignty  I  have 
just  been  describing.  The  conferring  of  such  a  power 
does  not  take  the  sovereignty  and  domain  from  the  State? 
and  bestow  it  on  the  National  Government.  It  does  not 


75 


affect  the  sovereignty  until  some  legislation  takes  place 
in  execution  of  the  power  ;  and  what  Congress  may  do, 
and  what  it  may  not  do,  in  execution  of  this  power,  we 
must  endeavor  to  ascertain  and  define.  If  it  had  been 
intended  to  transfer  State  sovereignty,  over  all  the  terri¬ 
tory  of  the  States  covered  by  navigable  waters,  constitu¬ 
ting  so  large  a  part  of  their  domain,  to  the  National  Gov¬ 
ernment,  it  would  have  been  done  with  at  least  as  much 
formality  and  explicitness  as  was  observed  in  conferring 
exclusive  government  upon  Congress,  over  the  seat  of  the 
National  Government,  and  over  the  places  where  its  forts 
and  other  needful  buildings  are  established. 

I  have  already  had  occasion  to  show  that  the  grant  of 
Admiralty  and  Maritime  jurisdiction  does  not  affect  the 
proper  sovereignty  of  the  State.  It  does  not  carry  a  ces¬ 
sion  of  the  waters,  where  these  cases  may  arise,  or  the 
general  jurisdiction  over  them. 

It  does  not  admit  of  a  doubt,  as  I  suppose,  that  the 
sovereignty  and  general  jurisdiction  over  the  navigable 
waters,  within  the  boundaries  of  a  State,  remain  with  the 
State.  The  question  then  arises,  how  far  may  the  legis¬ 
lation  of  the  State,  in  execution  of  this  sovereignty  and 
general  jurisdiction,  be  controlled  by  the  legislation  of 
Congress  under  the  power  to  regulate  commerce  1  Does 
this  power  authorize  Congress  to  assume  that  sovereignty 
over  the  territory  covered  by  the  navigable  waters  of  a 
State/' which  the  National  Government  must  exercise,  ex¬ 
clusive  of  the  State,  if  it  is  to  command  in  and  over  the 
waters,  in  whatsoever  may  affect  the  condition,  for  practi¬ 
cal  use,  of  the  easement  therein,  to  which  the  public  are 
entitled  1 

The  power  to  regulate  commerce  is  exclusive,  to  what¬ 
ever  extent  it  may  be  rightfully  exercised  by  Congress. 
No  State  can  exercise  it,  or  any  part  of  it.  Whatever  is, 
or  may  be  a  regulation  of  commerce,  must  be  effected  by 


76 


National  legislation.  And  commerce  includes  navigation 
and  intercourse.  It  is  not  confined  to  water,  and  places 
accessible  by  water.  It  passes  inland,  and  moves  on  the 
soil,  and  inland  waters,  among  the  States.  The  power  of 
Congress  attends  foreign  and  inter-state  commerce,  wher¬ 
ever  it  goes,  for  all  necessary  purposes  of  legal  regulation  ; 
and  this  power  is  the  same  on  the  land  as  on  the  water. 
Whatever  Congress  may  do  in  control  of  State  legislation 
and  State  sovereignty  on  the  navigable  waters  within  a 
State,  it  may  do  on  the  land,  wherever  routes  of  foreign 
or  inter-state  commerce  are,  or  may  be  established. 

The  history  of  commerce  under  the  Confederation, 
reveals  very  clearly  the  mischiefs  of  independent  State 
regulation,  which  were  intended  to  be  remedied  by 
making  the  general  commerce  of  the  country  national, 
and  making  one  government  responsible  for  its  regula¬ 
tion.  Commercial  treaties  could  not  be  made  or  main¬ 
tained,  without  this  national  power  over  foreign  com¬ 
merce.  Without  it,  the  foreign  commerce  and  naviga¬ 
tion  of  the  country  were  under  the  sway  of  foreign 
powers.  Tiie  whole  navigating  interest  of  the  United 
States  was  liable  to  be  sacrificed  to  the  foreign  navigating 
interest  engaged  in  American  commerce.  Even  that 
engaged  in  the  coasting  trade,  and  in  the  fisheries,  was 
liable  to  the  same  disability  and  sacrifice,  and  hence  the 
necessity  of  making  the  national  power  over  commerce 
cover  the  trade  between  the  States,  a  necessity  made 
imperative  by  the  interested,  oppressive,  and  retaliatory 
legislation,  between  individual  States,  or  classes  of  States, 
affecting  most  injuriously,'  not  only  the  foreign  and  coast¬ 
wise  trade,  but  the  internal  trade  between  the  States. 

Much  of  the  original  mischief  was  directly  met  and 
prevented,  by  specific  provisions  in  the  Constitution. 
Congress  cannot  tax  the  exports  from  any  State;  nor 
abuse  its  power  by  giving  the  ports  of  one  State  preference 


77 


over  those  of  another;  or  by  requiring  vessels  bound  to 
or  from  one  State  to  enter,  clear  or  pay  duties,  in  another; 
or  by  laying  any  duties,  imposts,  or  excises,  but  such  as 
are  uniform  throughout  the  United  States.  And  an 
effectual  restriction  is  laid  upon  the  States  to  prevent 
their  laying  duties  on  imports  or  exports,  or  duties  of  ton¬ 
nage.  Nor  can  a  State  confer  any  privileges  or  immuni¬ 
ties  in  respect  to  commerce  within  the  State,  on  its  citi¬ 
zens,  which  will  not  equally  belong  to  the  citizens  of 
other  States. 

For  the  rest,  the  regulation  of  commerce  is  left  to  the 
legislation  of  Congress.  By  the  legislation  of  Congress, 
an  American  commercial  marine  is  established,  and  a 
national  character  impressed  upon  the  vessels  and  crews 
engaged  in  commerce;  the  shipping  interest  in  the  foreign 
trade  is  protected  against  injurious  foreign  legislation,  or 
decrees;  the  coasting  trade  is  secured  to  the  home  interest 
in  shipping  and  navigation;  convenient  ports  of  entry 
and  delivery  are  established,  and  custom  house  officers 
appointed  to  conduct  the  necessary  business  at  such  ports; 
vessels  engaged  in  commerce  are  furnished  with  papers 
which  fix  their  character  and  privileges,  and  coasting 
vessels  receive  a  license  from  year  to  year,  which  is  their 
warrant  and  authority  to  pass  from  port  to  port,  wherever 
they  find  ports  accessible,  and  to  navigate  the  waters  of 
the  United  States,  wherever  they  find  the  waters  navi¬ 
gable. 

We  all  know  that  in  the  original  movements,  which 
resulted  in  establishing  a  new  government,  commerce  was 
the  chief  thing  considered.  In  the  instructions  to  most 
of  the  delegates  who  met  at  Annapolis,  the  main  thing 
required  was,  to  enquire  how  far  a  uniform  system  in  the 
commercial  intercourse  and  regulations  of  the  United 
States  was  necessary. 


78 


In  the  Constitutional  Convention,  in  committee  of  the 
whole,  on  the  several  plans  for  forming  a  new  govern¬ 
ment,  the  rule  adopted  as  to  specific  powers  to  be  given 
to  Congress,  was,  that  it  should  legislate  in  those  cases 
“  to  which  the  States  were  separately  incompetent,  or  in 
which  tire  harmony  of  the  States  would  be  interrupted  by 
the  exercise  of  individual  legislation.”  This  rule  applies 
to  this  commercial  power  as  conferred  by  the  Constitu¬ 
tion.  All  the  legislation  of  Congress  which  comes  pro¬ 
perly  and  directly  under  the  head  of  this  power,  will  be 
found  to  have  had  a  general  reference  to  the  rule  which 
confines  such  legislation  to  doing  what  the  States  are  sepa¬ 
rately  incompetent  to  do,  or  what,  if  attempted  by  them, 
would  interrupt  their  harmony. 

Without  touching  the  question  of  disputed  right, 
whether  Congress  has,  or  lias  not,  authority  to  protect 
and  encourage  domestic  industry,  under  the  power  to 
regulate  commerce,  I  may  remark,  that  the  form  of  affect¬ 
ing  the  object,  whenever  duties  have  been  laid  'primarily 
for  protection,  is  strictly  one  of  commercial  regulation; 
that  as  a  commercial  regulation  it  is  one  to  which  the 
separate  States  are  clearly  incompetent,  and  one  in  which, 
if  attempted,  (as  certainly  it  could  not  be)  the  harmony  of 
the  States  would  be  necessarily  interrupted  by  individual 
legislation. 

But  Congress  has  done  many  things,  and  the  authority 
of  Congress  to  do  many  other  things  is  often  claimed, 
which  have  some  manifest  relation  to  commerce  ;  and  the 
question  is,  where  does  Congress  get  the  power  to  do  them  1 
Congress  establishes  and  maintains  light-houses,  buoys, 
beacons  and  breakwaters,  and  has  at  times  engaged  in 
removing  natural  obstructions  from  bays,  sounds  and 
rivers.  It  has  prosecuted  for  a  series  of  years,  and  still 
prosecutes,  at  great  cost,  that  most  beneficent  and  magnifi- 


79 


cent  work,  the  Coast  Survey.  Under  what  power  is  all 
this  done  'l  Not,  certainly,  as  a  direct  exercise  of  the 
power  to  regulate  commerce.  A  light-house,  a  buoy,  or 
a  breakwater  is  certainly  not  a  regulation  of  commerce. 
Nor  is  the  removal  of  a  rock,  or  a  sand  bar,  in  navigable 
waters,  a  regulation  of  commerce.  They  aid  commerce, 
but  do  not  regulate  it.  They  are  a  means  of  facilitating 
and  carrying  on  commerce.  But  Congress  has  no  direct 
authority  to  carry  on  commerce,  or  to  supply  the  means 
of  carrying  it  on,  but  only  to  regulate  it  as  carried  on. 
Nor  can  these  measures  properly  come  under  the  u  inci¬ 
dental  ”  power — that  of  making  laws  “  for  carrying  into 
execution”  the  poAver  to  regulate  commerce.  They  are 
not  means  “  necessary  and  proper  ”  for  carrying  any  regu¬ 
lation  of  commerce  into  execution.  They  are  not  adapted 
to  such  an  object.  A  regulation  for  the  government  of 
seamen  on  board  of  American  ships  ;  for  conferring  privi¬ 
leges  on  ships  built  and  owned  in  the  United  States  ;  for 
laying  discriminating  or  countervailing  duties;  for  grant¬ 
ing  licenses  for  the  coasting  trade  or  fisheries  ;  such  regu¬ 
lations  of  commerce  are  not  carried,  or  aided  in  being 
carried,  into  execution  by  any  of  the  measures  just  refer¬ 
red  to.  They  may,  and  do,  tend  to  protect,  increase,  mul¬ 
tiply  and  facilitate  commerce  as  and  where  it  is  carried 
on  ;  but  the  execution  of  every  act  of  commercial  regu¬ 
lation  is  just  as  perfect  without  as  with  them. 

If  these  measures  are  to  be  justified  under  any  “  inci¬ 
dental  ”  power,  it  is  rather  under  that  of  making  laws 
for  carrying  into  execution  the  power  of  Congress  to  lay 
and  collect  duties  on  imports  ;  that  is,  the  taxing  power. 
As  Congress  is  authorized  to  raise  revenue  by  duties  on 
imports,  it  might,  with  plausibility  at  least,  be  argued 
that  to  carry  into  execution  this  power  in  a  way  to  pro¬ 
duce  the  required  revenue  at  the  least  burthen,  it  is 


80 


necessary  and  proper  that  measures  should  be  adopted  to 
increase,  multiply,  facilitate  and  protect  commerce  in  all 
practicable  ways,  and  that  these  measures  are  fitted  and 
adapted  to  that  object. 

But  the  true  constitutional  ground  on  which  these 
measures  stand,  is  that  of  the  direct  and  substantive 
power  of  Congress  to  make  appropriations  for  such  objects, 
of  a  national  character,  as  are  “  for  the  common  defence 
and  the  general  welfare  of  the  United  States.”  This  is 
taking  the  most  natuial  and  safe  construction  of  this 
power,  namely,  that  it  is  a  power  of  taxation,  but  limited 
to  objects  and  uses  of  a  national  character.  The  power 
to  lay  taxes,  taken  as  an  independent  power,  and  subject 
to  no  restriction,  would  have  been  absolute  and  arbitrary, 
and  Congress  might  have  raised  revenue  and  applied  it 
to  any  purpose  it  might  choose.  But  when  the  objects  of 
raising  revenue  are  especially  limited  to  those  of  “  paying 
the  debts,  and  providing  for  the  common  defence  and  gen¬ 
eral  welfare  of  the  United  States,”  taxation  is  limited  and 
restrained,  and  the  proceeds  can  only  be  applied  to 
purposes  of  a  general  and  national  character  within  the 
purview  of  the  Constitution.  (Story’s  Com.  Ch.  14.) 

On  no  other  just  ground  than  this,  can  appropriations 
to  make,  or  aid  in  making,  internal  improvements  in 
roads,  harbors,  and  rivers  rest.  Appropriations  for  light¬ 
houses,  buoys,  and  breakwaters,  for  the  Coast  Survey,  and 
for  all  the  indispensable  aids  to  the  national  commerce, 
rest  properly,  on  the  same  firm  foundation.  I  am  not  of 
the  number  of  those  who  deny  the  power  of  Congress  to 
appropriate  money  for  the  improvement  of  harbors  and 
rivers.  I  think  it  has  not  done  half  as  much  of  this 
sort  of  work  as  it  ought  to  have  done.  But  I  do  not  find 
the  authority  for  it  in  the  commercial  power.  Whenever 
such  an  improvement  is  national  in  its  character,  object, 


81 


and  importance,  appropriations  for  it  have  an  abundant 
warrant  in  that  direct  power  which  I  have  named.  It  is 
under  this  power,  and  not  the  commercial  power,  that 
Congress  formerly  made  appropriations  for  the  improve¬ 
ment  of  the  navigation  of  the  Hudson  river  above  and 
below  Albany  ;  and  I  think  the  general  interests  of  com¬ 
merce,  and  of  the  country,  would  have  been  greatly  ad¬ 
vanced  if  that  policy  had  been  duly  prosecuted,  instead 
of  being  virtually  abandoned,  as  it  was  many  years  ago. 

Here  then,  as  I  venture  to  think,  is  the  legitimate  and 
true  constitutional  ground  on  which  appropriations  for 
the  class  of  objects  just  referred  to  rest,  and  the  question 
before  the  Court  is  not  embarrassed  by  any  necessity  of 
assuming,  or  supposing,  that  they  have  been  made,  and 
could  only  be  made,  under  the  power  to  regulate  com¬ 
merce,  or  the  power  incident  thereto,  as  being  u  necessary 
and  proper”  to  carry  that  power  into  execution. 

There  is  nothing  in  the  action  of  Congress  authorizing 
these  measures;  nothing  in  their  history;  nothing  in  the 
Constitution,  requiring  or,  as  I  think,  authorizing  the 
Court  to  set  them  down  to  the  account  of  the  commercial 
power. 

There  is  nothing  in  the  Constitution  which  places  the 
jurisdiction  of  the  waters  of  a  State,  in  regard  to  the  ease¬ 
ment  of  the  public  therein  for  navigation,  in  the  hands 
of  the  National  Government,  any  more  than  it  places  the 
jurisdiction  of  the  land,  and  soil  of  the  State,  in  the  same 
hands,  in  regard  to  the  easement  of  the  common  roads 
and  highways  in  it,  when  they  are  routes  and  highways 
of  foreign  or  inter-state  commerce.  So  far  as  the  waters 
are  navigable,  and  the  easement  remains  dedicated  to  the 
use  of  the  people  of  the  State,  they  are  equally  open  and 
free  to  the  citizens  of  all  the  other  States;  and  just  in  the 
same  manner,  .the  roads  of  the  State  are  open  and  free  to 
the  use  of  all,  because  “  the  citizens  of  each  State  shall 
11 


82 


be  entitled  to  all  the  privileges  and  immunities  of  citizens 
in  the  several  States.” 

In  all  this  respect,  there  is  no  difference  between  the 
land  and  the  water.  The  roads,  railways  and  canals  of  a 
State  are  no  more  under  the  sovereignty  and  jurisdiction 
of  the  State,  than  are  its  navigable  waters;  and  State  leg¬ 
islation  over  the  navigable  waters  of  the  State,  in  respect 
to  their  condition  as  highways  of  general  commerce,  is  no 
more  subject  to  be  controlled  by  the  paramount  legisla¬ 
tion  of  Congress,  than  is  State  legislation  over  its  roads, 
railways  and  canals,  where  they  are  highways  of  the  like 
commerce. 

If  the  power  to  regulate  commerce,  or  the  power  inci¬ 
dent  thereto,  authorizes  Congress  by  its  legislation,  to 
establish  the  supremacy  of  the  National  Government  over 
the  waters  of  a  State,  in  all  that  concerns  or  affects  their 
navigableness,  it  authorizes  Congress  also,  and  equally,  to 
•establish  its  supremacy  over  the  main  avenues  and  routes," 
in  and  through  the  land  of  the  State,  so  far  as  they  are, 
or  can  be  made,  the  channels  or  highways  of  foreign  com 
merce,  or  commerce  between  State  and  State.  If  Con¬ 
gress  has  authority,  by  the  commercial  power,  to  take  the 
Hudson  river  under  its  sovereignty  and  jurisdiction, 
because  it  is  a  highway  of  commerce  between  the  States, 
and  can  forbid  any  erections  to  be  placed  therein,  by  State 
authority,  or  any  but  such  as  Congress  shall  prescribe,  it 
has  the  same  authority  to  construct  a  road,  a  railway,  or 
a  canal  through  the  State,  between  the  Hudson  river  and 
Canada  on  the  north,  or  Lake  Erie  and  the  States  border¬ 
ing  thereon,  and  still  further  on  in  the  west,  and  to  exer¬ 
cise  sovereignty  and  jurisdiction  over  such  road,  railway 
or  canal,  as  highways  of  commerce,  and  forbid  all  erec¬ 
tions  in  or  over  them  by  State  authority,  or  all  but  such 
as  itself  shall  prescribe.  This  precise  power  has  been 


83 


claimed  for  Congress  as  a  commercial  power.  (Story’s 
Com.  Ab.,  p.  454,  sec.  633  ;  orig.  sec.  1269  ) 

According  to  this  doctrine,  Congress  itself  might  have 
made  the  Erie  and  Champlain  canals,  as  highways  of  for¬ 
eign  commerce,  and  commerce  between  State  and  State, 
with  ports  of  entry  or  delivery  at  the  termini;  artificial 
rivers,  the  jurisdiction  and  control  of  which,  for  all  the 
uses  of  commerce,  would  have  belonged  to  the  National 
government,  with  authority  to  keep  the  hands  of  the 
State  government  off  from  them,  allowing  no  erections  in 
or  over  them,  not  even  a  bridge,  out  of  the  many  hundreds 
now  thrown  over  them,  but  such  as  Congress  might  allow 
and  prescribe.  On  the  same  principle  Congress  might 
have  constructed  the  trunk  or  main  lines  of  our  railways, 
leading  from  the  great  commercial  center  of  the  State,  to 
their  northern  and  western,  connections  with  a  foreign 
country,  and  with  other  States,  and  might  have  controlled 
them,  as  highways  of  commerce,  against  all  interference 
of  State  authority. 

Congress  might  go  further.  The  railways  and  canals 
of  New  York,  are  as  much  highways  of  commerce,  for 
foreign  trade,  and  that  between  States,  as  the  Hudson 
river,  or  any  other  river,  or  water  in  the  whole  Union. 
The  trade  between  the  United  States  and  Canada  through 
these  channels,  amounts  to  many  millions  annually  ;  and 
that  between  the  States  to  many  times  as  many  millions 
more.  If  Congress,  under  the  commercial  power,  has  a 
right  to  command  in  the  channels  and  highways  of  for¬ 
eign  and  inter-State  commerce,  for  the  protection  of  such 
commerce,  by  its  paramount  authority,  as  against  State 
interference  or  control  in  the  matter  of  physical  obstruc¬ 
tions, — then  on  principle,  there  is  no  reason  why  the  Na¬ 
tional  Government  should  not  assume  the  sovereign  com¬ 
mand  on  the  railways  and  canals  of  New  York,  con¬ 
structed  by  the  State,  as  well  as  on  the  Hudson  river,  for 


84 


the  protection  of  the  foreign  and  inter-state  commerce 
therein,  against  State  interference.  It  might  legislate 
not  only  to  make  regulations  for  this  commerce,  by  estab¬ 
lishing  ports  of  entry  or  delivery,  along  the  line  and  at 
the  termini  of  these  routes,  and  by  granting  licenses  of 
passage  and  navigation  as  in  the  coasting  trade,  but  to 
prescribe  and  control  the  construction  of  all  locks  and 
bridges  on  the  canals,  and  of  all  the  viaducts  and  cross¬ 
ings  of  the  railways,  and  of  their  gauge  and  grades.  The 
right  of  the  State  to  take  tolls  and  fares,  in  consideration 
of  the  cost  of  these  works,  would  probably  be  respected. 

The  internal  commerce  of  the  country  is  many  times 
greater  than  the  foreign- commerce  ;  and  that  part  of  it 
which  is  properly  foreign  and  inter-state  commerce,  taking 
carriage  and  travel  together,  moving  on  the  land,  by  way 
of  the  roads,  railways  and  canals,  can  hardly  be  less  than 
that  moving  on  the  rivers  of  the  United  States.  If  it  is 
necessary  and  proper  that  Congress  should  assume  the 
paramount  jurisdiction  over  these  rivers,  so  far  as  to  con¬ 
trol  and  direct  all  erections  in  or  over  them,  and  what¬ 
ever  else  might  affect  their  navigableness,  it  would  seem 
to  be  equally  necessary  and  proper  that  it  should  extend 
the  like  paramount  jurisdiction  over  the  land,  so  far  as 
to  control  and  direct  all  structures  in  or  over  the  roads, 
railways  and  canals,  used  for  foreign  and  inter-state  com¬ 
merce,  and  whatever  else  might  affect  their  availability  or 
utility,  as  the  highways  of  such  commerce.  It  would  not 
be  easy,  I  think,  to  find  one  reason,  founded  in  principle, 
necessity,  or  propriety,  and  having  reference  to  the  power 
to  regulate  commerce,  why  Congress  should  exercise  that 
sort  of  paramount  jurisdiction  which  I  have  described, 
over  the  navigable  waters  of  the  several  States,  which  does 
not  equally  require  and  demand,  that  it  should  exercise 
the  same  kind  of  jurisdiction  over  the  land,  wherever 


86 


great  routes  for  foreign  and  inter-state  commerce  are,  or 
may  be  established. 

The  fact  that  some  of  these  waters  of  the  States,  flow 
into  the  ocean,  and  that  the  ocean  flows  into  them  by  its 
tides,  or  the  fact  that  some  of  them  flow  through,  or  be¬ 
tween  two  or  more  States,  cannot  affect  the  general  doc¬ 
trine  respecting  this  jurisdiction.  The  Constitution  leaves 
these  waters  where  it  leaves  the  land,  under  the  general 
sovereignty  of  the  States.  If  in  giving  to  Congress  the 
power  to  regulate  commerce,  it  authorizes  that  body  to 
assume  this  particular  jurisdiction  over  the  waters,  it 
must  give  it  the  same  jurisdiction  over  the  highways  of 
general  commerce  on  the  land,  for  precisely  the  same 
object  and  under  the  same  necessity.  There  is  nothing 
in  the  nature  of  the  power,  or  in  the  nature  of  the  sub¬ 
ject,  to  mark  a  distinction  between  the  two  cases.  All 
that  can  be  said  about  it  is,  that  it  might  be  a  little  less 
difficult  for  Congress  to  assert  this  jurisdiction  on  the 
waters  than  on  the  land. 

The  fact  that  these  waters  are  natural  highways,  while 
roads,  railways  and  canals,  are  highways  of  artificial  con¬ 
struction,  cannot  affect  the  question  before  us.  It  is  a 
question  of  sovereignty  and  jurisdiction,  to  be  exercised 
for  a  specific  object, — that  of  protecting  commerce  where- 
ever  it  moves,  on  the  water  or  on  the  land.  If  this  is  a 
necessary  jurisdiction  in  the  general  government,  on  the 
water,  it  is  necessary  also  on  the  land.  If  it  is  neces¬ 
sary  in  order  to  keep  open  and  free,  highways  of  com¬ 
merce  on  the  water,  as  against  State  interference,  it  is 
equally  necessary,  in  order  to  keep  open  and  free,  high¬ 
ways  of  commerce  on  the  land,  as  against  State  inter¬ 
ference.  The  same  motive,  and  the  same  interest,  if  any 
such  can  be  conceived,  which  would  lead  a  State  to  obstruct 
commerce  on  the  waters  under  its  jurisdiction,  would  lead 


86 


it  to  obstruct  commerce  on  the  land.  There  can  be  no  doubt, 
I  suppose,  that,  before  the  Constitution,  any  State  might 
have  shut  up  its  navigable  rivers,  flowing  wholly  within  its 
own  limits,  from  the  use  of  the  citizens  of  other  States, 
or  admitted  them  on  its  own  terms.  It  cannot  now  do 
this,  except  by  closing  them  to  its  own  citizens;  an  au¬ 
thority  which  it  is  safe  to  say  can  never  be  exercised  over 
a  river  of  any  public  importance.  This  authority  does 
not  differ  in  kind,  and  hardly  in  degree,  from  that  which 
a  State  exercises  over  its  roads,  railways,  and  canals. 
They  are  highways  for  public  use,  subject  to  the  general 
sovereignty  of  the  State. 

The  change  which  the  Constitution  wrought  in  respect 
to  navigable  waters,  was  :  First,  that  the  navigable  waters 
of  every  State,  should  be  as  free  to  the  citizens  of  all 
other  States,  as  to  its  own; — and  next,  that  so  far  as  they 
should  remain  free  and  open  to  its  own  citizens,  being 
free  and  open  to  all  the  citizens  of  the  United  States,  the 
navigation  and  commerce  upon  them  (except  that  which 
might  be  purely  domestic  to  the  State)  should  be  subject 
to  the  regulation  of  Congress.  The  Constitution  wrougth 
the  same  change  on  the  land.  The  highways  of  a  State 
must  be  as  free  to  the  citizens  of  other  States  as  to  its 
own;  and  so  far  as  they  are  free  and  open  to  its  own  citi¬ 
zens,  being  also  free  and  open  to  all  other  citizens  of  the 
United  States,  whatever  of  foreign  or  inter-State  com¬ 
merce  moves  upon  them,  is  subject  to  the  regulation  of 
Congress.  In  both  cases,  and  equally,  the  sovereignty 
and  jurisdiction  otherwise  remain  with  the  State.  It  was  no 
part  of  the  purpose  of  the  Constitution,  under  the  power 
to  regulate  commerce,  to  clothe  Congress  with  authority  to 
assume  the  sovereignty  over  the  channels  and  highways 
of  commerce,  within  the  several  States,  whether  by  water  or 
land,  to  the  exclusion  of  the  States,  in  respect  to  what- 


87 


ever  might  concern  or  affect  their  condition  and  availa¬ 
bility  for  the  nses  of  commerce.  That  was  a  matter 
which  belonged  to  the  States,  and  was  properly  left  to 
their  control.  It  devolved  on  the  Genera]  government  to 
give  uniformity  and  freedom  to  commerce,  by  its  regula¬ 
tions,  wherever  that  commerce,  under  individual  enter¬ 
prise  and  conduct,  should  find  open  and  free  highways 
for  itself  among  the  States,  whether  on  the  water  or  on 
the  land,  leaving  those  highways,  and  all  that  might 
affect  their  condition  and  availability  as  such,  to  the  juris¬ 
diction,  control  and  care  of  the  States. 

The  channels  and  highways  of  commerce  in  the  States, 
wherever  open,  being  made  free  to  all  the  citizens  of  the 
United  States,  by  express  provisions  of  the  Constitution, 
it  remained  only  to  make  the  commerce  itself  free — free 
from  all  partial  and  conflicting  legislation  of  the  States — 
and  to  give  it  a  national  character  by  such  uniform  regula¬ 
tions  as  Congress  alone  could  make. 

Happily,  we  have  now  the  experience  of  seventy  years 
to  show  the  wisdom  of  this  arrangement.  The  States 
have  exercised  this  jurisdiction  and  control,  almost  with¬ 
out  question,  from  the  foundation  of  the  government. 
They  have  never  asked  the  leave  of  the  General  govern¬ 
ment  to  make  any  erections  in  or  over  their  waters  which 
they  might  see  fit  to  make,  any  more  than  to  make  and 
govern  their  own  roads,  railways  and  canals  on  the  land. 
In  one  instance  only  (that  of  the  Wheeling  bridge),  has 
that  Government,  by  any  department  of  it,  interposed  to 
take  this  jurisdiction  out  of  the  hands  of  a  State,  or  to 
dictate  the  terms  on  which  it  should  be  exercised.  And 
in  that  case,  the  legislative  department  of  the  govern¬ 
ment  came,  in  the  end,  to  the  relief  of  the  State,  by  a 
public  Act,  sanctioning,  so  far  as  Congress  could  sanction, 
the  exercise  of  State  sovereignty  on  the  subject.  The 


88 


result  in  that  case  has  shown  too,  that  the  apprehensions 
of  great  and  irreparable  injury,  whether  to  individuals, 
or  to  another  State,  from  the  exercise  of  this  kind  of 
sovereignty  by  a  State  over  its  own  waters,  were  unfoun¬ 
ded,  since  scarcely  an  appreciable  injury,  I  believe,  has 
been  felt  by  anybody,  from  the  Wheeling  bridge,  and 
nothing  in  comparison  of  the  vast  public  benefit  of  the 
work.  From  the  origin  of  the  government,  the  States 
have  gone  on,  in  the  exercise  of  their  proper  jurisdiction 
over  their  navigable  waters,  constructing  or  authorizing 
piers,  wharves  and  bridges,  all  of  them,  in  some  sense 
and  degree,  encroachments  on  the  channels  and  highways 
of  navigation,  as  they  originally  existed.  In  some 
instances,  the  accustomed  channels  of  navigable  waters 
have  been  closed,  or  changed,  by  dams,  through  which 
navigation  can  only  pass  by  means  of  locks.  In  the  Cuy¬ 
ahoga  bridge  case,  Mr.  Justice  McLean  declared  that  this 
was  a  proper  exercise  of  State  authority.  And  where  a 
navigable  creek  was  wholly  closed  by  a  dam,  the  act  of 
the  State  received  the  sanction  of  the  Supreme  Court. 
It  did  so  in  the  case  of  the  Blackbird  Creek  Marsh  Com¬ 
pany. 

And  thus  far  in  the  history  of  the  country  not  a  case 
has  occurred,  so  far  as  I  know,  where  this  jurisdiction  in 
the  States  has  been  abused,  or  in  any  manner  employed  to 
create  unnecessary,  improper  or  injurious  obstructions  to 
navigation  in  its  own  navigable  waters.  To  admit  the 
supposition  that  a  State  could  be  found  capable  of  such 
wickedness  or  such  reckless  folly,  would  be  to  assume 
that  such  State  is  unfit,  from  moral  degradation,  to  be  a 
government  at  all,  or  to  legislate  for  the  affairs  and  inte¬ 
rests  of  its  own  people. 

That  there  shall  be  rivalries  between  States  to  secure 
each  to  itself  the  great  currents  of  trade  and  travel 


89 


between  distant  points  of  great  commercial  importance, 
is  to  be  expected.  But  in  these  cases  each  will  look  to 
attain  success,  not  by  obstructing,  but  by  improving  and 
facilitating  navigation,  and  the  means  of  transit  through 
its  own  territory.  And  if  a  State  draws  to  itself  advan¬ 
tages  in  this  respect  over  another  State,  by  its  superior 
systems  of  internal  improvement,  or  its  superior  natural 
position,  the  public  interests  at  large  are  not  injured  by 
it,  and  the  rival  State  has  no  right  to  complain. 

The  distinction  between  the  jurisdiction  which  a  State 
properly  exercises  over  its  own  waters,  and  the  jurisdic¬ 
tion  over  commerce  which  belongs  to  the  General  Govern¬ 
ment,  is  a  broad  and  palpable  one.  What  are  regulations 
of  commerce  in  order  to  make  commerce  free,  is  easily 
understood.  The  object  has  been  accomplished  in  this 
country  by  special  provisions  in  the  Constitution,  and  by 
the  legislation  of  Congress,  which  takes  from  the  States 
all  power  to  restrict,  annoy  or  burthen  commerce  by  par¬ 
tial  and  conflicting  measures,  affecting  the  objects  or 
subjects  of  commerce,  or  the  vessels  or  agencies  employed 
in  transportation  and  carriage. 

The  regulations  adopted  by  the  European  powers  to 
secure  the  freedom  of  commerce  on  the  Rhine,  and  other 
rivers,  were  of  the  same  character  as  those  contemplated 
by  the  Constitution  to  secure  the  freedom  of  commerce  on 
the  waters  of  the  United  States.  The  object  was  accom¬ 
plished  without  touching  the  proper  sovereignty  of  the 
separate  riparian  States  over  the  waters  within  their  limits, 
beyond  the  necessary  restrictions  on  their  right  to  impose 
separate  duties  and  burthens  on  the  objects  or  instruments 
of  commerce.  Each  State  for  its  own  sake  would  keep  the 
channel  of  commerce  open  and  free  within  its  own  domin¬ 
ions,  while  making  such  erections  therein  as  the  interests 
of  its  own  people  demanded.  That  was  left  to  the 
sovereignty  and  judgment  of  the  State. 

12 


90 


I  do  not  say  that  a  State  has  any  rightful  authority  to 
shut  up  a  river,  of  any  considerable  importance  to  the 
commerce  of  the  country,  by  physical  obstructions,  even 
when  exclusively  within  its  own  territory,  if  it  runs  to  the 
sea.  Unimportant  streams  or  creeks  may  be  thus  closed 
for  sufficient  reasons  of  police  or  public  policy.  It  would 
be  a  matter  between  the  State  and  its  own  people.  But 
in  regard  to  rivers  that  are  really  important  to  commerce, 
I  believe  the  country  might  exist  under  the  Constitution 
for  a  thousand  years,  and  no  such  case  ever  occur.  It  is 
quite  impossible  to  suppose,  on  any  reasoning  applied  to 
what  we  know  of  human  conduct,  that  any  such  case 
should  occur,  so  long  as  the  States  of  the  Union  remain 
this  side  of  revolution  and  open  war. 

In  the  case  of  a  river  which  traverses  or  separates  two 
or  more  States,  and  goes  to  the  sea,  I  hold  it  to  be  equally 
improbable,  and  impossible,  that  the  navigation  should  be 
closed  by  any  one  of  the  States.  There  is  no  conceivable 
ground  of  interest,  or  commercial  policy,  which  should  lead 
the  State,  holding  the  mouth  of  such  a  river,  to  shut  up 
the  navigation  against  the  States  above.  Connecticut  can- 
not  now  stop  the  produce  of  Massachusetts,  Vermont  and 
New'  Hampshire,  descending  the  common  river  between 
them,  at  the  north  line  of  the  State,  or  at  the  mouth  of 
the  river,  and  demand  duties  upon  such  produce,  or  send 
up  its  own  produce  or  merchandize  burthened  with  State 
taxes,  for  the  consumers  above  to  pay.  It  is  the  very  free¬ 
dom  of  commerce  on  such  rivers,  made  thus  free  by  the 
Constitution  and  law's  of  Congress,  and  with  which  no 
State  can  interfere,  that  perfectly  secures  the  freedom  of 
navigation  upon  them,  without  taking  from  the  States 
their  sovereignty  and  jurisdiction  over  them,  so  necessary 
to  the  proper  exercise  of  their  powers  of  local  government 
and  police,  and  to  those  public  improvements  which  are 
indispensable  to  their  prosperity. 


91 


But  if  it  be  thought  possible  that  a  State  next  to  the  sea, 
on  any  ground  of  interest,  or  even  in  a  spirit  of  hostility 
or  injury  to  a  State  above,  on  a  river  common  to  them 
both,  should  close  the  navigation  between  itself  and  the 
State  above,  I  suppose  it  would  not  be  a  case  altogether 
beyond  judicial  cognizance  and  redress.  Imagine  the 
Connecticut  river  closed  by  a  dam  at  the  boundary  be¬ 
tween  Connecticut  and  Massachusetts.  Here  would  be 
u  a  controversy  between  two  or  more  States” — a  case  to 
which  the  jndicial  power  of  the  United  States  extends, 
with  original  jurisdiction  in  the  Supreme  Court. 

It  is  not  doubted  that  this  jurisdiction  was  given  mainly 
with  reference  to  disputed  boundaries,  or  titles,  between 
States.  But  the  power  is  general,  and  may  be  applied  to 
a  controversy  between  States  in  respect  to  a  right  of  navi¬ 
gation  in  a  common  river,  as  well  as  to  a  question  of 
boundary.  In  questions  of  boundary,  the  Court  takes 
cognizance  of  the  cases  on  the  express  authority  of  the 
Constitution,  and  decides  them  upon  the  laws  and  usages 
of  nations  in  disputes  of  that  kind.  (Opinion  of  Ch.  J. 
Taney,  in  Wheeling  Bridge  case,  19  Curtis,  p.  647.)  A 
controversy  between  States  in  regard  to  the  right  of  navi¬ 
gation  on  a  common  river,  would  also  stand  on  the  laws 
and  usages  of  nations. 

And  in  such  a  case,  I  suppose  the  right  of  the  injured 
State  would  be  clear.  The  United  States  have  always 
maintained  that  the  right  of  navigation  on  a  river  trav¬ 
ersing,  or  separating,  several  independent  States,  and  run¬ 
ning  to  the  sea,  was  a  natural  right  in  all  such  States,  and 
was  so  held  by  the  laws  of  nations.  The  States  above 
have  a  right  to  an  open  passage  to  the  sea,  subject  only  to 
the  authority  of  the  States  below  to  guard  themselves 
against  injury  or  serious  danger.  That  was  the  right 
always  maintained  by  the  United  States  to  the  free  navi- 


92 

gation  of  the  Mississippi  while  Spain  held  the  mouth  of 
that  river.  And  they  have  earnestly  contended  for  the 
same  right  of  free  navigation  on  the  St.  Lawrence.  If 
that  is  an  American  doctrine  of  international  law  as  appli¬ 
cable  to  independent  nations,  much  more  is  it  applicable  to 
the  States  of  this  Union,  where  the  Constitution  makes  all 
commerce  between  them  free,  and  thus  greatly  strength¬ 
ens  the  obligation  upon  such  of  them  as  are  below  on 
common  rivers,  to -keep  the  navigation  of  such  rivers  open 
and  free  to  those  States  above  which  have  a  right  to  use 
them,  even  by  the  lawys  and  usages  of  nations. 

But,  for  myself,  I  do  not  hold  it  to  be  a  supposable 
case  that  any  such  violation  of  the  rights  of  navigation 
can  ever  occur,  so  long  as  the  peace  of  the  Union  shall 
be  preserved.  The  States  must  go  far  beyond  the  line  of 
innocent  rivalries  under  the  Constitution — they  must 
become  hostile  States,  and  enemies,  before  they  can  enter 
upon  measures  which  can  have  no  object  but  to  see  which 
can  do  the  other  most  harm.  An  invasion  of  one  State 
by  the  forces  of  another  might  as  properly  be  anticipated. 
If  the  time  should  ever  arrive  wffien  States  of  this  Union 
shall  come  into  collision,  and  madly  indulge  in  acts  of 
mutual  hostility,  it  will  be  time  enough  then  to  consider 
how  far  the  power  of  the  general  government  may  be 
employed,  and  in  what  form,  under  the  Constitution,  to 
meet  the  difficulty.  Failing  that,  the  conflicting  and 
warring  sovereignties  of  the  country  must  be  left  to  find, 
or  make,  an  issue  of  peace  for  themselves,  if  they  can,  in 
their  own  way.  When  wars  come  to  be  flagrant,  laws 
will  of  course  be  silent. 

It  is  not  necessary  that  I  should  say  a  word  to  this 
Court  of  the  great  importance  of  this  principal  question 
of  power  as  between  the  National  and  State  governments, 
on  which  I  have  now  offered  my  views.  If  it  belongs  to 


93 


the  National  Government,  it  is  a  power  which,  if  once 
entered  upon,  has  no  assignable  limit.  It  is  impossible  to 
say  where  it  would  end.  Certainly,  the  power  being  con¬ 
ceded,  if  we  could  suppose  it  possible  it  should  ever  be 
exercised  to  the  full  extent  to  which  it  might  be  carried, 
if  once  begun,  it  would  leave  the  States  little  more  than 
the  shadow,  and  not  a  great  deal  of  the  substance,  of 
sovereignty.  Especially  would  they  be  stripped  of  power 
for  some  of  the  highest  and  most  beneficent  purposes  of 
government,  as  thus  far  employed  by  them.  Those  works 
of  public  improvement  which  have  been  so  extensively 
and  happily  prosecuted,  and  which  are  still  carried  for¬ 
ward,  by  the  separate  States  of  this  Union,  or  under  their 
authority,  and  which  together  constitute  a  connected 
system  of  vast  extent  and  magnitude,  and  of  incalculable 
value  and  importance  to  the  nation,  and  which  the 
National  Government  never  would,  and  never  could  have 
prosecuted  as  they  have  been  prosecuted  by  the  States,  or 
under  their  guardianship  and  power ;  how  much  of  all 
these  works,  these  noble  signs  and  instruments  of  civili¬ 
zation  and  progress  all  over  the  country,  would  have 
existed  to-day,  if  Congress  had  undertaken  to  press  the 
commercial  power  conferred  upon  it,  both  on  the  land 
and  on  the  water,  to  any  thing  like  the  dangerous  extent 
to  which  it  might  certainly  have  been  carried,  if  once 
entered  upon,  and  acquiesced  in  ?  Nobody  can  say  that 
the  attempt  would  not  have  been  most  disastrous. 

Fortunately,  as  I  venture  to  think,  and  as  I  have 
endeavored  to  convince  the  Court,  Congress  does  not 
possess  this  power  over  the  highways  of  general  com¬ 
merce,  so  that  in  whatsoever  might  affect  their  condition 
and  availability  for  the  uses  of  commerce,  the  General 
Government  might,  if  it  would,  command  as  sovereign 
over  them  all,  to  the  exclusion  of  the  States.  Happily, 


94 


too,  as  I  venture  to  think,  and  as  I  have  endeavored  to 
convince  the  Court,  if  Congress  does  possess  this  power, 
it  has  never  exercised  it.  Certainly,  as  it  seems  to  me,  it 
has  wholly  refrained,  by  a  settled  and  unbroken  policy, 
from  any  attempt  to  push  the  commercial  power  to  the 
extent  of  controlling,  in  any  degree  whatever,  State  legis¬ 
lation  over  the  navigable  waters  within  State  limits,  in 
respect  to  any  works  of  public  improvement  in  or  over 
them,  which  a  State  might  think  the  public  interests 
demanded  at  its  hands.  If  such  has  been  the  policy  of 
Congress,  from  which  it  has  not  departed  by  any  Act  of 
legislation  whatever,  this  Court,  I  am  sure,  if  so  convinced, 
will  be  quite  satisfied  and  content  not  itself  to  disturb 
that  policy,  even  if  it  had  the  power  to  disturb  it. 

With  a  country  already  so  expanded  as  ours  has  be¬ 
come  since  the  Constitution  was  framed,  and  destined, 
perhaps,  to  embrace  still  other  and  more  distant  regions 
and  peoples,  the  problem  of  maintaining  such  a  frame 
of  National  Government  as  the  Constitution  establishes, 
in  necessary  vigor,  and,  at  the  same  time,  in  harmony 
with  the  separate  political  Communities  which  make  up 
the  Union,  multiplied  and  multiplying  as  these  separate 
Communities  are,  is  one  which  no  patriot  mind,  whether 
of  jurist  or  statesman,  can  contemplate  without  the  pro- 
foundest  anxiety.  No  thinking  man,  I  imagine,  can  be 
found  at  the  present  day,  who  supposes  that  our  Federal 
system  could  be  maintained  at  all,  but  for  that  ample 
measure  of  sovereignty  for  local  government  which  the 
Constitution  so  happily  leaves  in  the  hands  of  the 
States.  Every  one,  I  suppose,  now  sees  that  any 
further  weakening  of  the  States,  to  add  strength  to 
the  National  Government,  would  have  been  fatal.  The 
security  of  the  system  rests  in  the  fact  that  every  State 
is,  and  feels  that  it  is,  a  real  sovereignty  and  a  real 
government,  endowed  with  original  powers,  for  all  that 
most  intimately  concerns  the  welfare  and  happiness  of 


95 


the  people  of  such  State,  and  is  not  a  mere  municipal 
Corporation  with  a  modicum  of  authority  borrowed 
from  an  imperial  Power  to  which  it  owes  its  existence. 

Nothing,  in  my  judgment,  could  be  more  entirely 
fatal  to  our  system  than  any  disturbance,  at  the  present 
day,  by  Constitutional  interpretations,  of  the  nicely 
adjusted  balance  of  powers  between  the  National  and 
State  Governments,  as  fixed  by  the  Constitution.  Both 
must  have  their  own,  and  nothing  which  is  not  their 
own.  And  it  must  needs  be  remembered  that  the  pre¬ 
rogative  of  the  National  Government,  which  makes  it 
the  interpreter  and  final  adjudicator  of  its  own  powers, 
while  it  is  an  indispensable,  is  yet  a  fearful  authority. 
It  is  not  in  the  nature  of  any  government  voluntarily  to 
abdicate  or  repudiate  any  of  its  just  powers.  Happy, 
thrice  happy,  if  the  General  Government,  marching  up 
fully  to  this  line,  shall  take  care  not  to  pass  it  by  so 
much  as  the  breadth  of  a  hair.  But  what  moderation, 
what  forbearance,  what  lofty  justice,  what  noble  virtue, 
does  not  all  this  demand  !  And  it  is  this  Court  to  which 
the  country  must  look  as  the  grand  exemplar  of  these 
high  attributes. 

This  Court  occupies  a  position  of  higher  dignity,  and 
of  more  awful  responsibility,  than  attaches,  or  ever 
attached,  to  any  other  Judicial  Tribunal  on  earth. 
While  it  cannot  lift  a  finger  of  authority,  except  to 
administer  the  law  of  the  land  as  between  litigant  parties 
immediately  before  it,  precisely  in  the  manner  of  the 
humblest  tribunal  of  justice,  yet,  such  is  the  nature  of 
the  jurisdiction  it  is  sometimes  called  upon  to  exercise, 
the  governments  of  the  country,  State  and  National,  the 
States  themselves,  and  the  United  States,  are,  at  times, 
in  effect,  summoned  into  its  august  presence,  and  dis¬ 
missed  with  its  authoritative  decrees  resting  upon  them. 
Sublime  as  this  power  is,  it  is  not  greater  than  necessity 
demands ;  and  on  its  strict  preservation  depends,  in  my 


96 


honest  judgment,  the  issue  of  the  great  experiment  we 
are  making  in  the  Science  of  Government.  But  how  is 
this  tremendous  power  to  be  preserved,  so  that  it  may 
commend  itself  to  the  continued  and  unabated  reverence, 
submission  and  obedience  of  the  country  ?  To  this 
question  there  can  be  but  one  answer.  While  maintain¬ 
ing,  with  a  courage  that  must  never  falter,  all  the  just 
powers  ol  the  Government  of  which  it  forms  an  integral 
department,  and  all  its  own  just  powers,  its  very  exis¬ 
tence  is  staked  upon  the  careful  and  scrupulous  abnega¬ 
tion  of  all  unaccorded  or  doubtful  authority,  whether  in 
itself,  or  in  the  government  of  which  it  forms  a  part. 


lo  '1  la  %  6  “S'  -oof  .  t  ^ 


